Every state now collects DNA from people
convicted of certain offenses.(1) Law
enforcement authorities promote offender DNA databanking on the theory
that it will clear previously unsolved crimes and identify
offenders who commit additional crimes while on
probation or parole, or after they have finished serving their
sentences. Even relatively small databases have yielded such
dividends. (2) As these database
searches uncover the perpetrators of rapes, murders, and other
offenses, the pressure builds to expand the coverage of the databases.
(3) As the databanks grow, so do fears about civil
liberties. Editorial writers decry "unfettered
government-sponsored bioinvasion"(4)
and call for legislation "to ensure that scientific advances in
law enforcement do not swamp the privacy rights of ordinary
citizens." (5) Professors of law,
sociology, and public health describe DNA databanking as part of an
insidious
[----------------457----------------]
"surveillance creep"(6)
and "the first step toward an Orwellian society"(7) that will make "us a 'nation of suspects,' and
radically alters the relationship between the citizen and the
government."(8)

Recent proposals call for extending not
merely the scope of crimes for which DNA databanking would be used,
but also the point at which the samples would be collected. The United
Kingdom and most European countries already collect and store DNA from
all persons arrested for a wide range of offenses.(9)
More than one state in this country has enacted legislation
enabling DNA sampling upon arrest.(10)
In other states, legislators have introduced bills that would authorize
or require
[---------------458---------------]
DNA databanking for arrestees.(11)
Calls for DNA sampling on arrest from the police commissioner and mayor of New York City,
(12) have sparked public rallies at City Hall
(13) and cries of "unconstitutional!" from the
American Civil Liberties Union.(14) Although the
backlog of existing DNA samples from convicted offenders awaiting
analysis makes these proposals unappealing,(15)
the situation will change as more resources are
[----------------459---------------]
applied to reduce the backlog(16) and the technology for
analyzing the samples advances. (17)
At that point, the constitutional questions will spill out of the
editorial pages and into legislative chambers and courthouses
throughout the country.

This article examines the
constitutionality of taking, analyzing, and storing DNA samples and
data from individuals who are arrested.(18)
The [---------------460---------------]
most salient constitutional protections are the Reasonableness and
Warrant Clauses of the Fourth Amendment, the Self-incrimination Clause
of the Fifth Amendment, and the Due Process Clause of the Fourteenth
Amendment.(19) The analysis here
shows that these protections do not foreclose a carefully constructed
system for compelling individuals subject to custodial arrest to
supply samples of their DNA.

Before undertaking this legal analysis,
however, we need a precise description of what DNA databanking
involves. Part I of this article describes the nature of DNA
databanking for law enforcement purposes. It introduces terminology
and distinctions that help clarify the range of possible systems for
collecting and using DNA data. Part II considers the possibility that
forcing individuals to give samples of DNA contravenes
[---------------461---------------]
the Self-incrimination Clause. It explains why even compulsory DNA
sampling does not violate the privilege against self-incrimination.
Part III examines the Due Process Clause. It shows that neither the
process of collecting DNA nor the storage of it (or the information
encoded in it) necessarily deprives individuals of liberty without due
process of law. Finally, Part IV analyzes the clauses of the Fourth
Amendment pertaining to searches and seizures. It shows that neither
the lack of a search warrant nor the absence of probable cause to
believe that the suspect has committed the offense to which DNA
profiling would pertain is an insuperable obstacle to collecting,
analyzing, and storing DNA information from the arrested individual.
It argues, however, that the Fourth Amendment's prohibition of
"unreasonable searches and seizures" requires any such
system to incorporate stringent controls on the scope of the
information extracted from the samples and the dissemination of that
information.

I. Of Databanks and Databases

To construct a law enforcement database,
samples of DNA must be collected, the samples analyzed, and the
resulting data stored so that it can be accessed
efficiently. In the systems now in use, a sample of blood, saliva, or
other tissue or fluid is collected, a portion is taken for analysis,
and some of the remainder is preserved and stored. A minute portion of
the genetic information in the subsample is analyzed. The analysis
generally is limited to thirteen locations, or loci, that
yield patterns, or genotypes, that approach the level of
unique identification.(20) Despite
the connotation of "genotype," the DNA sequences at these
loci are not genes; these alleles are non-coding,
non-regulatory DNA sequences.(21) In
themselves, they reveal information that is no more intimate than the
particular blood serum enzyme that an individual happens to have, the
pattern of blood vessels in the retina of the eye, or the whorls
[---------------462---------------]
and ridges in a fingerprint. They disclose nothing about the individual's
susceptibility to diseases, bodily structure, or mental functioning.
(22)

These genotypes, expressed as a set of
numbers, are entered into state or local databases.
(23) From the state level,(24)
they can be entered into a national database known as NDIS -- the
National DNA Index System -- maintained by the FBI.(25)
Police looking for the person who might have left
blood, semen, or other biological trace evidence at crime scenes or on
victims(26) can search individual
state databases or the national database to learn whether a known
offender might be the source of the crime-scene DNA. The multilevel
system of local, state, and national databases constitutes CODIS--the
Combined DNA Index System.(27)

In short, there are the databases
that contain the numerically coded, identifying genotypes, and databanks
that simply store the original samples taken from offenders.
(28) All the genotypes from the databank samples
that comprise the database can be searched by computer to determine
whether any match the genotypes from the trace evidence samples
associated with the crime or the victim. If a match is found, further
police work is required to establish a case against the suspect. If
the full investigation suggests guilt and the case goes to trial, the
prosecution should not
[---------------463---------------]
rely on the database search to link the
defendant to the crime. Rather, defendant's genotypes should come from
the analysis of a new confirmatory sample of the suspect's
DNA.(29) If this sample matches the
trace evidence DNA, then there is no need to introduce evidence of the
database search, which would imply (possibly in violation of the rules
of evidence(30)) that the defendant
has a criminal record.

In these terms, the question that must be
answered is whether any system of DNA databanks or databases is
consistent with the protections the Constitution affords individuals.
To answer this question, we must attend to all phases of the system --
collecting DNA samples, analyzing them, storing them,
recording the genotypes in them, and using that biometric information.

II. Self Incrimination

The Fifth Amendment to the Constitution
provides that no person shall "be compelled in any criminal case
to be a witness against himself . . . ."(31)
Despite vigorous dissents,(32)
the Supreme Court has held time and again that the privilege against
self-incrimination reaches no farther than communications that are
"testimonial."(33) Revealing
mere physical or behavior characteristics is not "testimonial."
(34) Thus, the privilege [---------------464---------------] does not
protect an individual from government compulsion to provide
blood or other biological samples. For example, in Schmerber
v. California,(35) a man was
arrested at a hospital while receiving treatment for injuries suffered
in an accident involving the automobile that he had apparently been
driving. At the direction of a police officer, a physician at the
hospital withdrew a blood sample over the suspect's objection.
Chemical analysis indicated a high blood alcohol level, and the man
was convicted for driving while intoxicated. Although he insisted that
the forced extraction of his blood compelled him to be a witness against
himself, the Supreme Court affirmed the conviction. The majority
explained that:

Not even a shadow of testimonial
compulsion upon or enforced communication by the accused was involved
either in the extraction or in the chemical analysis. Petitioner's
testimonial capacities were in no way implicated; indeed, his
participation, except as a donor, was irrelevant to the results of the
test, which depend on chemical analysis and on that alone. Since the
blood test evidence, although an incriminating product of compulsion,
was neither petitioner's testimony nor evidence relating to some
communicative act or writing by the petitioner, it was not
inadmissible on privilege grounds.(36)

In light of this doctrine, the Court of
Appeals for the Tenth Circuit made short shrift of a Fifth Amendment
argument against DNA databanking for convicted offenders. In Boling
v. Romer,(37) the court simply
stated that the claim that "requiring DNA samples from inmates
amounts to compulsory self-incrimination fails because DNA samples
[---------------465---------------]
are not testimonial in nature."(38)
The same result follows inescapably with respect to DNA samples from
arrestees.(39)

III. Due Process

The Fifth and Fourteenth Amendments
provide that no person "shall be deprived of life, liberty, or
property, without due process of law . . . ."(40)
This Due Process Clause requires that the government
adopt fair procedures before invading personal liberty or property
interests, and that, at a minimum, the invasion rationally can be said
to advance some legitimate governmental purpose. DNA databanking, it
can be argued, implicates two aspects of personal liberty -- bodily
integrity and the privacy of personal information. We consider each in
turn.

A. Bodily Integrity

Although the removal of a person's cells plainly
infringes a liberty interest in bodily integrity,(41)
it is well settled that the safe and relatively painless removal of
blood does not offend due process.(42) In [---------------466---------------]
Breithaupt v. Abram,(43)
for instance, a pickup truck collided with a car in New
Mexico. Three occupants of the car were killed, and the driver of the
truck was seriously injured. A pint whiskey bottle, almost empty, was
found in the glove compartment of the pickup truck. The driver was
taken to a hospital, where he lay unconscious in the emergency room
with the smell of liquor on his breath. A state patrolman asked an
attending physician to take a blood sample. Laboratory analysis showed
this blood to contain about .17% alcohol, and this blood alcohol
evidence was used to convict the driver of involuntary manslaughter.
The driver later challenged his imprisonment on the ground that the
conduct of the police in seizing the blood from his unconscious body
was so offensive as to deprive him of due process of law.

The Supreme Court rejected this argument,
weighing the severity of the infringement on personal liberty against
the public interest in preventing automobile accidents and in
adjudicating complaints for drunken driving accurately. The majority
first observed that "certainly the test as administered here
would not be considered offensive by even the most delicate."
(44) The Court then concluded that "so slight an
intrusion" of "the right of an individual that his person be
held inviolable" could not prevail as against "the interests
of society in the scientific determination of intoxication, one of the
great causes of the mortal hazards of the road. And the more so since
the test likewise may establish innocence, thus affording protection
against the treachery of judgment based on one or more of the
senses."(45)[---------------467---------------]

Much the same analysis has been applied to
uphold taking DNA samples from prison inmates. In Kruger v.
Erickson,(46) the District Court
for the District of Minnesota observed that "the procedures . . .
are performed" by "trained laboratory technician[s]"
"according to medically acceptable protocols."
(47) The court therefore held that the extraction of an
inmate's blood for DNA databanking "does not 'shock the
conscience,' or 'offend the sense of justice.'"(48)

Removing cells for DNA profiling from
arrestees might not involve a physician as in Breithaupt, or
even a technician as in Kruger. DNA can be extracted from
many sources, including not just white blood cells, but also buccal
cells lining the cheek, saliva, and probably skin scrapings.(49)
A police officer might be trained to take a buccal
swab, to collect a saliva sample, or to remove epidermal cells with a
sticky pad. Because such procedures are even less intrusive and less
dangerous than removing blood with a hypodermic needle -- the procedure
employed in Breithaupt -- the use of trained non-medical
personnel is not so shocking or offensive as to violate the Due
Process Clause.

B. Informational Privacy

Freedom from bodily intrusion is one
species of "privacy" that the Due Process Clause surely
protects. A distinct strand of privacy is the right to keep highly
personal information confidential.(50)
At the outset, however, it is not clear that the "liberty"
or "property" that the clause protects includes such a right
to informational privacy. Moreover, even if this form of privacy is a
"liberty" or "property" interest, a system of DNA
databanking that includes reasonable safeguards for preventing
improper disclosure of the information satisfies the Due Process
Clause.

These conclusions follow from the Supreme
Court's opinion in Whalen v. Roe.(51)
New York adopted a law requiring physicians to file
copies of prescriptions for certain dangerous drugs with the state
Department of Health. The information, including the name and address
of the patient, was entered into a computerized data base. The forms
themselves were stored in a vault and destroyed after five years.
Access to
[---------------468---------------]
the data was restricted, and public disclosure of the
identity of patients was prohibited by the statute and by a Department
of Health regulation.(52) Twenty
months after the effective date of the Act, the computerized data had
only been used in two investigations involving alleged overuse of
drugs by specific patients.

A group of patients and physicians
challenged the constitutionality of the statute. A three-judge
district court held that "the doctor-patient relationship
intrudes on one of the zones of privacy accorded constitutional
protection" and that the patient-identification provisions of the
Act invaded this privacy with "a needlessly broad
sweep."(53) It
enjoined enforcement of the provisions of the Act that dealt with the
reporting of patients' names and addresses.

The Supreme Court unanimously reversed.
Justice Stevens' opinion for the Court first observed that the New
York law was "the product of an orderly and rational legislative
decision,"(54) that "could
reasonably be expected to have a deterrent effect on potential
violators as well as to aid in the detection or investigation of
specific instances of apparent abuse."(55)
Therefore, even though the number of instances in which the data base
was used was small, "the patient-identification requirement was a
reasonable exercise of New York's broad police powers."
(56)

This portion of the opinion applies the
traditional "rational basis" test. Under this standard, the
Court will not invalidate legislation under the Due Process Clause
merely because it is unwise or apparently unnecessary; rather, there
must be no rational basis for concluding that the law furthers a
legitimate government interest. A much more demanding standard applies
to legislation that infringes fundamental rights such as freedom of
expression or procreative liberty. An invasion of such a right
requires the state to show a compelling interest rather than mere
rationality.(57)

That the Whalen Court chose to
apply the rational basis test thus suggests that it did not see the
statute as implicating a constitutional right to privacy. Indeed, Part
II of the Court's opinion explicitly rejects the argument that the
record-keeping system invaded a protected "zone of privacy."
(58) Plaintiffs maintained that the system infringed two
distinct
[---------------469---------------]
privacy interests -- one "in avoiding disclosure of
personal matters," and another "in independence in making
certain kinds of important decisions." (59)
The Court implicitly assumed that the Due Process Clause protects
these interests, but it did little to confirm or deny this premise.
Instead, it merely concluded that "neither the immediate nor the
threatened impact of the patient-identification requirements in the
New York . . . Act . . . on either the reputation or the independence
of patients for whom Schedule II drugs are medically indicated is
sufficient to constitute an invasion of any right or liberty protected
by the Fourteenth Amendment." (60)
Indeed, in the concluding portion of its opinion, the Court stated
that it had "not decided" whether "unwarranted
disclosure" of "personal information in computerized data
banks or other massive government files" might violate the
Constitution. (61)

In contrast to the Court's opinion, the
concurring opinions squarely address whether a constitutional right
to privacy necessitated more demanding review. Justice Brennan agreed
that "limited reporting requirements in the medical field are
familiar . . . and are not generally regarded as an invasion of
privacy."(62) He suggested,
however, that "[b]road dissemination by state officials of such
information . . . would clearly implicate constitutionally protected
privacy rights, and would presumably be justified only by compelling
state interests."(63)
Furthermore, he worried that "[t]he central storage and easy
accessibility of computerized data vastly increase the potential for
abuse of that information, and [was] not
[---------------470---------------]
prepared to say that future
developments will not demonstrate the necessity of some curb on such
technology."(64) Nevertheless,
he concluded that strict scrutiny was not required unless and until
there was some showing that the system would result of unauthorized
dissemination.(65) Justice Stewart
sharply disputed Justice Brennan's claim that broad dissemination
"would clearly implicate constitutionally protected privacy
rights." His concurring opinion demonstrates that the Supreme
Court has never recognized such a privacy right.(66)

Whalen does not reveal whether
government collection of personal DNA information implicates a privacy
right that is an aspect of the liberty protected under the Fifth and
Fourteenth Amendments. Instead, the case deals with the acquisition
and storage of privately generated medical data. There are intimations
that the state is constitutionally required to maintain the
confidentiality of this information, but even this is unclear.

Nevertheless, some lower courts have
recognized a privacy right to nondisclosure of stigmatizing personal
information. For example, in In re Doe,(67)
the Court of Appeals for the Second Circuit held that
New York City's Commission on Human Rights may have violated the right
to privacy by issuing a press release that identified the plaintiff as
HIV seropositive. (68) In Powell
v. Schriver, (79) the same court
extended Doe to brand the gratuitous disclosure to prison
inmates that a prisoner was an HIV positive transsexual as an invasion
of the prisoner's right to privacy and to allow recovery of damages
under the civil rights laws. In Norman-Bloodsaw v. Lawrence
Berkeley Laboratory,(70) the
Ninth Circuit Court of Appeals extended Doe and related
cases to medical tests for pregnancy, syphilis, and the allele for
sickle cell anemia.(71)[---------------471---------------]

These cases rest on a remarkably generous
reading of Whalen, (72)
and other courts have expressed "grave doubts" about the
existence of a constitutional right to nondisclosure of
"personal" information.(73)
Nevertheless, assuming arguendo that Doe, Powell,
and Norman-Bloodsaw are correctly decided, they do not
invalidate arrestee DNA databanking. The purely identifying features
of DNA are not in the same stigmatizing category as having tested
positive for HIV or syphilis, having undergone a sex change operation,
having used narcotics, or being pregnant. And, even if DNA data were
the type of information to which the privacy right attaches, the
unmistakable lesson of Whalen v. Roe is that collecting and
storing the information do not infringe the right to privacy as long
as the government provides effective safeguards to ensure the
confidentiality of the DNA samples and data.(74)[---------------472---------------]

IV. Search and Seizure

Objections grounded in the Fourth Amendment are not so easily
surmounted. That amendment provides that:

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrant shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.

Thus, compulsory DNA sampling on arrest would violate this right if
(1) it constitutes a "search or seizure" that
(2) is "unreasonable." The DNA data-gathering system would
be unreasonable (a) if the police lack a
judicial warrant to take DNA, and a warrant is essential; (b) they
lack adequate information to believe that the DNA will help to prove
that the suspect is guilty of the crime for which the arrest is made,
and such information is necessary; or (c) the system of
collecting or using the samples unjustifiably invades personal privacy
in other ways.

This section suggests that the threshold
question of whether there is a search should be answered in the
affirmative but that a carefully designed and very limited system of
arrestee databanking should be deemed reasonable under the balancing
test that the Supreme Court has applied to Fourth Amendment claims
in recent years. Part A considers whether collecting DNA on arrest is a
search. Part B discusses the standards or tests that might be used to
determine reasonableness under the Fourth Amendment and how these
apply to DNA databanking.

A. DNA Sampling as a Search or Seizure

A threshold question in considering the
constitutionality under the Fourth Amendment of DNA sampling is
whether the acquisition of the sample is a search or seizure. If DNA sampling is
not a search or seizure, then the Fourth Amendment is no barrier. As shown below, whether
the collection of a biological sample is a search or seizure depends
on the method of collection and the disposition of the sample. If
sampling involves a physical intrusion into the body, the procedure is
a search or seizure for Fourth Amendment purposes. But if it is merely
an inspection of material on the surface of the body, it is arguable
that there is a search or seizure only if subsequent analysis can
reveal sensitive, personal information. Unless the process for DNA
sampling upon arrest is highly circumscribed, it can reveal such
information and therefore should be treated as a search.
[---------------473---------------]

1. The Katz Standard

A great deal of modern Fourth Amendment
law is built on Katz v. United States.(75)
In Katz, the government acquired key evidence
to convict the defendant of interstate gambling by attaching an
electronic listening and recording device to the outside of a public
telephone booth. The government argued that the interception was not a
search because there was no physical trespass and the telephone booth
was a public place. The Supreme Court held that neither entry onto
private property nor inspection of tangible items is an essential
feature of a search, for "the Fourth Amendment protects people,
not places."(76) It protected
the defendant, the Court explained, because "a person in a
telephone booth . . . who occupies it, shuts the door behind him, and
pays the toll that permits him to place a call is surely entitled to
assume that the words he utters into the mouthpiece will not be
broadcast to the world."(77)
Because the federal agents had no warrant authorizing the
interception, the majority held that the search violated the Fourth
Amendment.

In a concurring opinion, Justice Harlan elaborated on the
majority's remarks. In perhaps the most famous passage in the opinions, he wrote:
"[T]here is a twofold requirement, first that a person have exhibited
an actual (subjective) expectation of privacy and, second, that the
expectation be one that society is prepared to recognize as
'reasonable.'"(78)
Applying this standard, he explained that
"[t]he point is not that the booth is 'accessible to the public'
at other times, but that it is a temporarily private place whose
momentary occupants' expectations of freedom from intrusion are
recognized as reasonable."(79)

Under Katz, the crucial threshold
question for DNA sampling is whether society should recognize as reasonable the
expectation that the sample is not "up for grabs" by the
government. As applied to samples of biological
material, several factors affect this determination. These include (1)
the extent to which the material is displayed to the public, (2) the
extent of the bodily invasion caused by the sampling procedure, and
(3) the nature of the information that can be extracted from the
sample. We now consider these in turn.

2. Public Exposure and Knowledge

Public exposure of a bodily characteristic
is highly significant in determining whether forcing the individual to
reveal that characteristic to the government is a Fourth Amendment
search. In Katz, the notion of
[---------------474---------------]
public exposure was pivotal.(80)
The later case of United States v.
Dionisio,(81) also turns on this
consideration. In Dionisio, federal agents had obtained a
recording of a conversation showing illegal gambling operations. A
grand jury ordered twenty people to read the transcript of the
conversation aloud so that agents could record their voices. When
Dionisio refused, the government obtained a court order compelling him
to furnish the voice sample. Dionisio persisted, arguing that the
order violated his rights to be free from self-incrimination and
unreasonable searches and seizures. The district court held him in
civil contempt and ordered him to be imprisoned until he complied or
until the grand jury expired. The Court of Appeals for the Seventh
Circuit reversed. It rejected the self-incrimination claim, but
concluded that to force Dionisio to give a voice sample without having
probable cause to believe that his voice was on the recording violated
the Fourth Amendment.

The Supreme Court disagreed. It held that
neither the grand jury subpoenas nor the recording process constituted
a search or seizure. On historical grounds and because a grand jury
subpoena does not itself physically confine anyone, the Court held
that there was no "seizure" of the person. As for the taking
of the voice sample, the Court again concluded that there was no
action that fell within the scope of the Fourth Amendment. As the
Court explained it:

The physical characteristics of a person's voice, its tone and
manner, as opposed to the content of a specific conversation, are
constantly exposed to the public. Like a man's facial
characteristics, or handwriting, his voice is repeatedly produced
for others to hear. No person can have a reasonable expectation that
others will not know the sound of his voice, any more than he can
reasonably expect that his face will be a mystery to the world.
(82)

The exposed-to-the-public principle,
however, is ambiguous. In Dionisio, it was described in terms
of features that are casually and constantly observed in
public.(83) As to these characteristics,
the approach
[---------------475---------------]
can be summarized as a public-knowledge rather than a mere public-exposure
standard, and in this form it is relatively unproblematic. If the
information about the person's body that the state seeks is known to
people in the course of everyday life, and if authorities have secured
the individual's presence consistently with the Fourth Amendment, then
compelling the person to expose that information is not a further
search or seizure.

But what about features that are less
widely known or not known at all by casual observers? Courts have
extended the notion of "exposed to the public" well beyond
the range of that which is constantly exposed and easily observed. For
example, fingerprints are deposited in public places, but their
detailed structure is not common knowledge. Nevertheless, some courts
have used the public-exposure principle to justify excluding
compulsory fingerprinting from Fourth Amendment constraints.
(84) In Palmer v. State,
(85)for instance, the
Indiana Supreme Court reasoned that the warrantless
acquisition of defendant's fingerprints during his trial did not
constitute a seizure forbidden by the Fourth Amendment because
"fingerprints are an identifying factor readily available to the
world at large."(86) Other
courts, citing Dionisio, have held that shining an
ultraviolet lamp on an arrestee's skin to expose chemicals transferred
from stolen money is not a search because the fluorescent
[---------------476---------------]
material "may be compared to a physical characteristic, such as a
fingerprint or one's voice, which 'is constantly exposed to the
public.'"(87)

Likewise, it might be argued that DNA is
constantly exposed to the public. Many people shed hairs, cough or
sneeze, expectorate, and even leave fingerprints that can contain
cells. At best, however, the fact of such exposure is a relevant
consideration is deciding whether the Fourth Amendment applies. Dionisio
and cases extending it involve no intrusion into or touching of
private areas of the body(88) and no
discovery of information about the individual beyond the identifying
characteristics. Accordingly, even if one takes the dubious position
that DNA is constantly exposed to the public in a meaningful way, we
must consider whether these additional factors create a reasonable
expectation of privacy.

3. Invasion of the Body

An inspection or extraction that
penetrates the body or enters its cavities usually is regarded as
infringing a reasonable expectation of privacy and hence falling
within the zone of the Fourth Amendment. DNA can be extracted from
many sources, including white blood cells, buccal cells inside the
cheek, saliva, and (probably) skin scrapings.(89)
As explained below, the manner of extraction and the
site of the materials extracted indicate that the former two
procedures are searches, but these factors are not dispositive of how
the latter two should be treated.

a. Blood Samples

Removing blood from the circulatory system
invades bodily integrity, and as such, constitutes a search. The
leading case is Schmerber v. California,(90)
which involved taking blood from a man being treated in
a hospital for injuries received in an automobile accident.
(91) The Supreme
[---------------477---------------]
Court held that the warrantless seizure of
the blood at the direction of the police met the Fourth Amendment's
reasonableness standard, and it described the applicability of that
amendment in no uncertain terms:

It could not reasonably be argued, and indeed respondent does not
argue, that the administration of the blood test in this case was
free of the constraints of the Fourth Amendment. Such testing
procedures plainly constitute searches of 'persons,' and depend
antecedently upon seizures of 'persons,' within the meaning of that
Amendment.(92)

Schmerber was decided in 1966,
however; today, it is possible to withdraw blood from a fingertip with
a device that leaves almost no trace and produces virtually no
sensation. This advance in technology makes blood sampling less
disturbing than using a hypodermic needle and syringe or even pricking
a fingertip and squeezing, but it does not overcome the fact that
tissue in a portion of the body that is not voluntarily exposed to the
world is being extracted. Consequently, even if blood could be
"teleported" from the inside of the body to an external
container, the "person" would be searched.

b. Buccal Swabs and Oral Sampling

Swabbing the inside of the cheek can
provide cells for DNA analysis, as can other devices placed inside the
mouth.(93) These procedures are less
invasive than removing blood by conventional means, but they too
exceed an inspection of the surface of the body presented to the
public at large. Consequently, buccal swabbing and the like should
trigger Fourth Amendment protection. This conclusion seems confirmed
by Cupp v. Murphy.(94) In Cupp,
the defendant was suspected of strangling his wife. Police took
fingernail scrapings from him over his objections. The scrapings
contained "traces of skin and blood cells, and fabric from the
victim's nightgown,"(95) and
defendant was convicted of murder. The case
[---------------478---------------]
came to Supreme Court on a petition for a writ of habeas corpus.
The Court reasoned that the removal of the sample was a search:

Unlike the fingerprinting in Davis, the voice exemplar
obtained in United States v. Dionisio, . . . or the
handwriting exemplar obtained in United States v.
Mara,(96) the search
of the respondent's fingernails went beyond mere
'physical characteristics . . . constantly exposed to the public,' .
. . and constituted the type of 'severe, though brief, intrusion
upon cherished personal security' that is subject to constitutional
scrutiny.(97)

If scraping or cutting a fingernail to remove dried blood or other debris
is a search, then so is scraping the inside of a cheek.

c. Saliva Samples

Saliva sampling resembles the voice sample
found to lie outside the zone of the Fourth Amendment in Dionisio.
A voice sample travels from the larynx to locations outside the body
-- nothing is inserted into the body or a body cavity to extract
the sound. Likewise, a saliva sample can be acquired without any
intrusion. However, the situation differs from Dionisio in
that saliva, unlike voice, is not routinely presented to the public.

Cases dealing with breath sampling seem to
blur these considerations together. The Supreme Court spoke to the
classification of breath sampling in Skinner v. Railway Labor
Executives' Association.(98) In
that case, the Federal Railroad Administration had promulgated
regulations that mandated blood and urine tests of employees involved
in certain train accidents and that authorized railroads to administer
breath and urine tests to employees who violate certain safety rules.
Some provisions authorized breath and urine tests on a
"reasonable suspicion" of drug or alcohol impairment, but
others did not require any showing of individualized suspicion.
Railway employees alleged that this system violated their Fourth
Amendment rights. The Court of Appeals for the Ninth Circuit
invalidated the regulations, holding that the drug testing required
reasonable suspicion.

The Supreme Court reversed, but it did not
dispute that taking breath samples is a search. To the contrary, the
Court apparently perceived no distinction between taking blood by
puncturing a blood vessel and having a person expel air from the
mouth. The majority wrote as follows:
[---------------479---------------]

We have long recognized that a 'compelled intrusio[n] into the body
for blood to be analyzed for alcohol content' must be deemed a
Fourth Amendment search. See Schmerber v. California, 384 U.S. 757,
767-768 (1966). See also Winston v. Lee, 470 U.S. 753,
760 (1985).[(99)] In light
of our society's concern for the security
of one's person, see, e.g., Terry v. Ohio,
392 U.S. 1, 9 (1968),[(100)]
it is obvious that this physical intrusion,
penetrating beneath the skin, infringes an expectation of privacy
that society is prepared to recognize as reasonable. The ensuing
chemical analysis of the sample to obtain physiological data is a
further invasion of the tested employee's privacy interests. Cf.
Arizona v. Hicks, 480 U.S. 321, 324-325 (1987). Much the same is
true of the breath-testing procedures . . . . Subjecting a person to
a breathalyzer test, which generally requires the production of
alveolar or 'deep lung' breath for chemical analysis, . . .
implicates similar concerns about bodily integrity and, like the
blood-alcohol test we considered in Schmerber, should also
be deemed a search . . . .

Apparently, the location of the air -- in the alveoli -- rather than
innocuous method of collecting it, was crucial to the Skinner
Court.(101)

This single-minded focus on location leads
one to ask whether material from the mouth rather than the lungs
should be treated any differently.(102)
It is difficult to see why, but the cursory
analysis in Skinner leaves open the argument that saliva
sampling is not a search because it involves no penetration of the
body or its cavities.(103)[---------------480---------------]

d. Skin Scrapings

Collecting DNA from exfoliating epidermal
cells would be even less invasive than saliva sampling. These cells
are on the outside of the body, where they are "visible" to
the world in much the same sense that fingerprints are exposed to the
world. If an adequate number could be obtained by a procedure that is
no more disturbing than fingerprinting, then both the site from which
they are taken and the method of collection would suggest that this
form of DNA sampling is not a search.

In sum, although taking blood or buccal
cells is likely to be considered a search subject to the Fourth
Amendment because of the method of extraction and location of the
cells, it is possible that taking saliva or epidermal cells will not
be considered a search on the basis of these factors alone. However,
the lines being drawn in the cases on bodily intrusions or inspections
seem rather faint, and the logic behind them gives too much weight to
what is technically but not functionally exposed to the
public.(104) The
better view is that all the forms of DNA sampling
[---------------481---------------]
considered here should be denominated searches for the purpose of the Fourth
Amendment. Furthermore, this conclusion is fortified by consideration
of a third factor -- the nature of the information derived from the
cells.

4. Nature of the Information

Thus far, we have focused on the extent to
which the material to be collected is exposed to the public and the
manner in which it is collected. The final consideration in
determining whether removal or inspection of bodily material constitutes a
search is the nature of the information that can be derived from it.
In bringing this factor to the foreground, Skinner makes a
useful contribution. The majority opinion recognizes that "[u]nlike
the blood-testing procedure at issue in Schmerber, the
procedures prescribed by the . . . regulations for collecting and
testing urine samples do not entail a surgical intrusion into the
body."(105) Nonetheless, the
opinion concludes that urine sampling followed by urinalysis is a
search for the following reasons:

It is not disputed, however, that chemical analysis of urine, like
that of blood, can reveal a host of private medical facts about an
employee, including whether he or she is epileptic, pregnant, or
diabetic. Nor can it be disputed that the process of collecting the
sample to be tested, which may in some cases involve visual or aural
monitoring of the act of urination, itself implicates privacy
interests.(106)

The concern with "private medical
facts" arises with any samples that can be subjected to DNA
analysis. Arguably, Skinner is distinguishable in that
urinalysis involves both the possible revelation of private
information and interference with what might be called, for
want of a better phrase, "excretory privacy." DNA sampling
is closer to voice sampling in that it can be done noninvasively, but
it is closer to urinalysis
[---------------482---------------]
in that subsequent biochemical testing can
reveal "private medical facts." To this extent, it cannot be
said that DNA sampling, like the fingerprinting in Davis,
"involves none of the probing into an individual's private life
and thoughts that marks an interrogation or search."
(107) Certain parts of one's genome -- those related
to otherwise nonobvious disease states or behavioral characteristics
-- are as much, if not more, a part of "an individual's private
life" as are the hormones or other chemicals found in one's urine.

Perhaps the conclusion that DNA sampling
is a search because of the nature of the information in the sample
could be avoided by a procedure that made it virtually impossible to
extract the sensitive information. If the DNA is obtained in a
noninvasive manner and if information related to
identification and nothing else could be obtained from it, the analogy
to fingerprinting would be complete. Suppose, for instance, that
police were equipped with miniaturized DNA chips that could probe only
non-functional STR loci and that would destroy the DNA once it has
been analyzed and the alleles recorded. This system might not rise to
the level of a search. As currently practiced, however, DNA sampling
should be considered a search within the meaning of the Fourth
Amendment.(108)

This conclusion does not imply that DNA
sampling is impermissible -- only that it must be subjected to serious
Fourth Amendment analysis. As the Skinner Court observed,
"[t]o hold that the Fourth Amendment is applicable to the . . .
testing . . . is only to begin the inquiry into the standards
governing such intrusions."(109)
It is time to articulate these standards for ascertaining the
"reasonableness" of searches and to apply them to DNA
sampling on arrest.

B. The Reasonableness of DNA Sampling on Arrest

1. The Framework for Analysis:
Categorizing versus Balancing

The reasonableness of a search can depend
on many factors: the presence of a warrant, or, in the absence of a
warrant, the feasibility or value of securing one; the extent and
nature of the invasion of privacy; the purpose of the search; and the
likelihood that it will achieve its goal. In theory, courts could
inquire into the totality of the circumstances in each case.
(110) In practice, however, the courts usually determine
[---------------483---------------]
reasonableness by invoking a general rule that searches require
warrants,(111) then looking through
a pragmatic collection of categorical exceptions to this stringent
demand.(112) For instance, in Cupp
v. Murphy,(113) the nail
scraping case, the Court held that the search was reasonable, but only
because it fell into a previously accepted category of warrantless
searches. Namely, the search was "incident to a valid
arrest"(114) in the sense that
the police needed to act immediately to preserve the sample.
(115) There was probable cause, and the exigent
circumstances justified the police in acting before seeking a warrant.
Rules like these reflect, to varying degrees of accuracy, a balancing
of the broad considerations listed above.
[---------------484---------------]

Applying these rules to collecting and
storing DNA information on arrestees suggests that a highly
circumscribed system of sampling and typing would be constitutionally
acceptable. The constitutional analysis must attend to the following
possible objections to DNA databanking: (a) there is no warrant and no
probable cause (let alone reasonable suspicion) that the search will
produce evidence of the offense for which the arrest is made; and (b)
the sampling infringes bodily integrity and informational privacy. In
several other situations where these objections have been raised,
however, the Supreme Court has held that the government could
undertake searches or seizures without a warrant and without
individualized suspicion.(116)
If DNA databanking falls into one of the
categories that these cases have established, it satisfies the Fourth
Amendment. If it does not, we must ask whether a new exception should
be created--an inquiry that requires balancing the seriousness of the
invasion of privacy against the governmental interests in the
search.(117)

This approach of defining and applying
categorical exceptions can be contrasted to case-by-case balancing. In
recent years, the Court, speaking through Justice Scalia, has
interpreted the Fourth Amendment as requiring ad hoc balancing for
searches as to which no clear historical precedent exists.
(118) In Vernonia School District 47J v. Acton,
(119) a case upholding mandatory random drug-testing of high
school athletes, Justice Scalia declared that:

At least in a case such as this, where there was no clear practice,
either approving or disapproving the type of search at issue, at the
time the constitutional provision was enacted, whether a particular
search meets the reasonableness standard "is judged by
balancing its intrusion on the individual's Fourth Amendment
interests against its promotion of legitimate governmental
interests."(120)

[---------------485---------------]

As applied to DNA databanking, the choice
between categorical analysis and direct balancing does not seem
crucial.(121) It is open to the
courts to create new exceptions, and the same factors that operate in
direct balancing will come into play. It will suffice to consider
whether DNA databanking fits the established categories and whether
the case for a new category is strong.

2. The "True Identity" Exception

The courts have long recognized the
importance of accurately identifying individuals who are arrested. One
century ago, in State ex rel. Bruns v. Clausmeier,
(122) an arrestee sought damages from a sheriff for taking
plaintiff's picture and including it in the local "Rogues'
Gallery." The Indiana Supreme Court held that the sheriff was
acting within his lawful authority:

It would seem, therefore, if, in the discretion of the sheriff, he
should deem it necessary to the safe-keeping of a prisoner and to
prevent his escape, or to enable him the more readily to retake the
prisoner if he should escape, to take his photograph, and a
measurement of his height, and ascertain his weight, name,
residence, place of birth, occupation, and the color of his eyes,
hair, and beard, as was done in this case, he could lawfully do so.(123)

In 1932, in United States v. Kelly,
(124) a distinguished panel of the Second Circuit,
(125) dismissed a petition alleging that federal agents
violated the Constitution in taking the fingerprints of a man arrested
for selling a quart of gin. Judge Augustus Hand observed that
fingerprinting had become "a method of identifying persons
charged with crime [that is] widely known and frequently practiced
both in jurisdictions where there are statutory provisions regulating
it and where it has no sanction
[---------------486---------------]
other than the common law."(126)
The court allowed that "[a]ny restraint of the
person may be burdensome,"(127)
but reasoned that:

Such means for the identification of prisoners so that they may be
apprehended in the event of escape, so that second offenders may be
detected for purposes of proper sentence where conviction is had,
and so that the government may be able to ascertain, as required by
. . . the National Prohibition Act, whether the defendant has been
previously convicted, are most important adjuncts of the enforcement
of the criminal laws . . . . The slight interference with the person
involved in finger printing seems to us one which must be borne in
the common interest.(128)

Indeed, in most jurisdictions escape from
arrest is a separate criminal offense.(129)
Once lawfully arrested, a person has an obligation to remain in custody until the police
complete the necessary administrative processing, sometimes
culminating in pretrial release and sometimes in pretrial
incarceration. Making a record of identifying characteristics of every
arrestee facilitates the enforcement of the statutes criminalizing
escape from arrest.

Thus, although the Supreme Court has yet
to bestow its formal blessing on routine fingerprinting or other
identification procedures on
[---------------487---------------]
arrest, it has intimated that inquiries
that merely identify arrestees are valid,(130)
and today most courts take the propriety of fingerprinting arrestees
for granted.(131) The procedure is a
kind of inventory search, providing an unequivocal record of just who
has been arrested, that is considered appropriate when the state takes
an individual into custody.(132)

Of course, recording biometric data that
help establish the identity of those charged with crimes could serve
another function. Once the data have been justifiably obtained as part
of the "inventory" of the arrested individual, they might be
used to solve crimes unrelated to the one for which the arrest was
made, on the ground that the further use does not amount to an
independent invasion of privacy.(133)
For example, "mug shots" can be shown to a victim of a
robbery in the hope that the victim will be able to identify the
perpetrator or to exclude innocent suspects.
(134) Some courts have turned this investigative practice
into a neologistic rationale for fingerprinting. In Jones
v. Murray,(135) the first
federal appellate case to address the constitutionality of DNA
databanking for convicted offenders, the Fourth Circuit pointed to
"universal approbation of 'booking' procedures that are followed
for every suspect arrested for a felony, whether or not the proof of a
particular suspect's crime will involve the use of fingerprint
identification."(136) In
articulating "the government's interest in preserving a permanent
identification record of
[---------------488---------------]
convicted felons,"(137) however,
the Jones court lost sight of the
original rationale for fingerprinting and spoke only of
"resolving past and future crimes"(138)
in that "[i]t is a well recognized aspect of
criminal conduct that the perpetrator will take unusual steps to
conceal not only his conduct, but also his identity."(139)
Emphasizing that "[d]isguises used while
committing a crime may be supplemented or replaced by changed names,
and even changed physical features,"(140)
the court concluded that collecting DNA genotypes, like taking
fingerprints, is justified to link an offender to a crime.(141)

These observations of the Jones court may well be
correct -- the power of DNA typing to forge links between suspects and
criminal activity cannot be denied. However, this investigatory use of
biometric data is not what underlies the "identification exception." The
analysis in Jones posits a government interest that is
distinct from the traditional justification for recording biometric
data. This investigatory interest is more appropriately analyzed under
the "special needs" exception or under a newly created
exception as discussed in the next two sections. The normal
"identification exception" might be better denominated a
"true identity" exception, since it merely relates to the
government's need to know precisely who it has arrested.

Although the "identity exception" seems well
established, whether DNA typing can be subsumed within it is less
clear. On the one hand, fingerprints already provide an unequivocal,
and in some respects, a better record of personal identity than
forensic DNA typing. Monozygotic twins can be distinguished by their
fingerprints, but not by their genotypes.(142)
In addition, with current technology, fingerprints can be obtained more easily
and more cheaply than DNA profiles. On the other hand, fingerprint patterns cannot be
converted into numerical data that can be searched as efficiently as
DNA data.(143) Also, an arrestee might be
carrying false identification, and searching a database of DNA prints
of individuals with outstanding warrants might reveal that the
arrestee is a fugitive. Unless the Fourth Amendment creates a constitutional
[---------------489---------------]
straightjacket that fits but one biometric identifier,
the narrow, "true identity" exception should pertain to DNA
genotyping as much as it does to fingerprinting.

3. The "Special Needs" Exception

A relatively recent and somewhat amorphous
category of searches that do not require a warrant or individualized
suspicion goes under the rubric of "special needs."
(144) As discussed below, these cases involve searches
undertaken for some purpose other than, or in addition to, the interception of contraband
or the discovery of evidence of crime. Usually, but not always,
these searches are not undertaken by the police. The category is described
in National Treasury Employees Union v. Von Raab,
(145) as follows:

While we have often emphasized, and reiterate today, that a search
must be supported, as a general matter, by a warrant issued upon
probable cause, . . . our decision in Railway Labor Executives
reaffirms the longstanding principle that neither a warrant nor
probable cause, nor, indeed, any measure of individualized
suspicion, is an indispensable component of reasonableness in every
circumstance. . . . [O]ur cases establish that where a Fourth
Amendment intrusion serves special governmental needs, beyond the
normal need for law enforcement, it is necessary to balance the
individual's privacy expectations against the Government's interests
to determine whether it is impractical to require a warrant or some
level of individualized suspicion in the particular context.(146)

The "special needs" cases began
with Camara v. Municipal Court.(147)
Charged with violating the San Francisco Housing Code
by refusing to permit an annual inspection of his residence in an
apartment house, Camara argued that the inspection could not proceed
without a warrant based on probable cause to believe that there was an
infraction of the city's housing code. The Court, however, distinguished between
[---------------490---------------]
"typical Fourth Amendment cases"(148)
and inspections intended to uncover "conditions which are hazardous
to public health and safety."(149)
It rejected the argument that "warrants should
issue only when the inspector possesses probable cause to believe that
a particular dwelling contains violations of the minimum standards
prescribed by the code being enforced."(150)
Instead, the Court held that warrants for searches for
housing code violations in entire areas could be issued on the basis
of area-wide standards that do not require a showing of individualized
suspicion that there is a code violation at a particular dwelling.
(151)

Later cases have upheld warrantless,
suspicionless searches of many types -- administrative inspections in
"closely regulated" businesses;(152)
stops for questioning or observation at a fixed Border Patrol
checkpoint(153) or at a sobriety
checkpoint;(154) routine or random
blood testing and urinalysis of certain employees(155)
and student athletes(156)
(but not candidates for public office);(157)
inspections and seizures for the purpose of inventorying and
preserving an arrestee's possessions;(158)
random
[---------------491---------------]
"shakedown" searches of prison cells;(159)
and even visual anal or vaginal examinations of
pretrial detainees.(160) In each
case, the Court referred to "special needs" to justify a
balancing test to ascertain the reasonableness of the type of search
in question. In performing the balancing in all these cases, the Court
considered the importance of the government's interest, the
practicality and value of securing a warrant and requiring individual
suspicion, and the gravity of the privacy invasion.(161)

Judges have disagreed as to the
applicability of the "special needs" exception to
convicted-offender DNA databanking.(162)
Determining whether the exception applies to DNA searches of either
convicts or arrestees demands a theory that unifies the variegated
"special needs" cases. Although the Court has only hinted at
the theory, the basic idea is implicit in the word "special"
and its antonym, "normal." The "normal" situation
addressed by the warrant-and-probable-cause clause of the Fourth
Amendment involves two competing sets of interests -- the government's
interests in enforcing the criminal law, and the individual's
interests in being free from searches and seizures. To construe the
Fourth Amendment as stating that a judicial warrant supported by
probable cause is an essential feature of reasonableness for
traditional searches
[---------------492---------------]
or seizures(163)
is to read the Amendment as announcing a judgment that the balance
between these two sets of interests tips in favor of the individual in
this class of cases. Thus, in enforcing the criminal code, the
government cannot rely on the fact that it searched only a small
portion of a suspect's house or that the crime under investigation is
especially heinous to circumvent the warrant requirement. However,
when the government has a rationale above and beyond "the normal
need for law enforcement," one cannot simply assume that the
outcome prescribed in the amendment applies, for an additional
interest lies on the governmental side of the balance. Therefore, in
the "special needs" cases, the Court undertakes a
contemporary balancing of public needs and private interests to
enforce the reasonableness requirement.

This theory of the special-needs exception
is less than a diatessaron, but it explains most of the cases in which
the Court has invoked the exception.(164)
An immediate threat to public safety (such as that posed by drunken
drivers(165)), to the health or
safety of workers,(166) or to
another interest distinct from solving crimes and recovering stolen
goods or contraband(167) (such as
maintaining the integrity of the border(168)
or supervising probationers(169))
usually motivates the practice that curtails individual
[---------------493---------------]
liberty or privacy.(170) Thus, in City of
Indianapolis v. Edmond,(171)
the Court declined to apply the special-needs exception to a program in which police
used dogs to sniff for drugs in vehicles pulled over in groups at
fixed roadblocks. Distinguishing sharply between "highway safety
interests and the general interest in crime control,"
(172) the majority reasoned that "[b]ecause the primary
purpose of the Indianapolis narcotics checkpoint program is to uncover
evidence of ordinary criminal wrongdoing, the program contravenes the
Fourth Amendment."(173) Likewise,
in Ferguson v. City of Charleston,(174)
The Court invalidated a program in which a state university
hospital tested urine samples from pregnant women for cocaine and reported
positive resultes to the police so that those women would be willing to
participate in substance-abuse counseling in lieu of criminal prosecution.
Again, the majority of the Court emphasized "the relevant primary purpose"
-- which was said to be "the arrest and prosecution of drug-abusing
mothers."(175)[---------------494---------------]

On this understanding of the "special
needs" cases, one must ask whether there are purposes for typing
DNA from an offender or an arrestee that are distinct from the usual
investigative function. One, considered in the previous section, is
the administrative purpose of recording identifying characteristics in
the event that the individual escapes and disguises his identity.
Another, which would apply if the arrestee data were retained
indefinitely, is to assist in identifying missing persons or victims
of disasters. And, there are other reasons that the state might want
to know the true identity of a pretrial detainee -- contacting relatives
in the event of serious illness, for example. To this extent, the
special-needs exception comes into play.

Assuming for the moment that special-needs
balancing would allow acquisition and retention of genotypes for these
limited purposes,(176) the analysis provides
an alternative route to the more traditional "true identity"
exception. If that exception did not already exist, we might have to
invent it, and the special-needs jurisprudence supplies the modern
framework for doing so. But do the special-needs cases do anything
more than mark another trail to the historically established
"true identity" exception? Do they permit the state to
collect biometric information not merely to obtain personal
identifiers for individuals placed in custody, but also to solve
crimes in which DNA has been left?

It is tempting to argue that they do, on
the theory that the state is free to make subsequent use of
information that it has legitimately obtained.(177)
After all, if the subsequent use is not a new search
or seizure, then the Fourth Amendment demands no additional warrant or
showing.(178) Furthermore, it seems
odd to maintain that the balance of interests permits dispensing with
warrants or individualized suspicion when non-law-enforcement
interests alone are pursued, but not when both law enforcement and
non-law enforcement interests reinforce each other.

However, under Edmond and Ferguson, the
additional-use doctrine applies more subtly at the level of adopting a
multifaceted program. Presumably, in Edmond, the Indianapolis police could have
employed roadblocks to check for intoxicated drivers. While conducting
this check, they could have brought a drug-sniffing dog near the
driver's vehicle;
[---------------495---------------]
after all, the use of a dog to detect the odor of
narcotics is not a search.(179)
Therefore, the dissent argued, "[t]he State's use of a
drug-sniffing dog, according to the Court's holding, annuls what is
otherwise plainly constitutional . . . ."(180)
To which the majority responded: "the
constitutional defect of the program is that its primary purpose is to
advance the general interest in crime control."(181)
Discerning the primacy of the general crime-control
purpose in Edmond was trivial, for this was the only
purpose the city proffered.(182)

Ferguson is slightly more complex
in that the state hospital adopted a program that relied on the criminal law not
to punish women, but to induce them to comply with drug abuse programs.
Nevertheless, the state hospital established the cocaine testing program in
consultation with the police department for the express purpose of obtaining
evidence for criminal cases.(183)
Consequently, the Court was able to say that the
sole immediate purpose of the program was to generate evidence against cocaine
users for criminal prosecutions, and a program that has as its only immediate
goal subjecting individuals to the criminal law involves no "special
needs."(184)

Significantly, however, neither Edmond
nor Ferguson reaches the more vexing question of what evidence can be
used to infer purpose when the government contends that its immediate purpose in
instituting an investigative practice is something other than (or in addition to) pure
[---------------496---------------]
crime control.(185)
The validity of mixed-motive programs will be more difficult to ascertain.

For example, if a state adopts an identification
program that it concedes was instituted for the sole purpose of
obtaining a personal identifier to check against trace evidence from
crimes, then Edmond and Ferguson close the door to the special-needs
exception. Specifically, it could be argued that (1) just as it would
have been permissible to stop cars to check for inebriated drivers, it
is permissible to acquire and retain the DNA genotypes of custodial
arrestees for the limited, administrative purpose of securing an
unambiguous personal identifier; (2) just as the use of a dog to sniff
out crime is not itself unconstitutional, using the DNA records to
link arrestees to other crimes is constitutional; but (3) because the
program was adopted to implement its second component rather than the
first, it has as its "primary purpose" the "general
interest in crime control." This characterization of the program
would preclude the balancing that might excuse the lack of
individualized suspicion for special-needs searches.

But even if a state does not
concede that its biometric identifier program was adopted to look for
matches with crime-scene samples, the result may be the same.
Consider the practice of fingerprinting arrestees, which began in some
jurisdictions before latent fingerprints were used in solving crimes.
(186) In those jurisdictions, the practice originally served
[---------------497---------------]
only the administrative functions for having an unambiguous,
permanent, personal identifier of individuals who have been arrested.
The primary purpose test surely is satisfied, and special-needs
balancing is permissible.

Now suppose that such a jurisdiction
adopts the practice of checking these fingerprints against those
lifted from crime scenes. If the neoteric database-query practice is
itself a program, then it must confront Edmond's dictum that
"programmatic purposes may be relevant to the validity of Fourth
Amendment intrusions undertaken pursuant to a general scheme without
individualized suspicion."(187)
The only purpose for searching a database of crime-scene fingerprints
(or for creating a database of arrestee fingerprints to search against
new crime-scene prints as they emerge) is the "general interest
in crime control." Hence, the new practice cannot be upheld under
the special-needs balancing.

But if the new practice is treated as part
of an integrated system, then Edmond and Ferguson appear to ask which
function the system as a whole has as its primary purpose -- the
administrative one of having an accurate, permanent record of who has
been incarcerated, or the general crime-control one of solving cases.
Neither answer is particularly satisfying. One could argue that the
crime-control component, which came as an afterthought, is secondary;
but the system as ultimately implemented clearly serves both
functions.

Now consider the same system with both components adopted
simultaneously. The situation seems even more complex, for now we must
guess whether the state would have adopted the administrative
record-keeping component even without the crime-control database-query
component.(188) Assume that it would
have, but that it also would have adopted the database-query component
without the record-keeping component. In these circumstances, neither
component is primary in the "but for" sense. If actual as
opposed to announced motives are decisive,(189)
however, the legislative history or other sources
might be consulted to decide which motive predominates.

This effort to describe the "primary
purpose" test for identification systems for arrestees could be
prolonged, but it seems clear that there is no general answer to
whether a particular system of DNA identification that goes beyond
administrative record-keeping to encompass general crime-control
features will be eligible for balancing under the special-needs
[---------------498---------------]
line of cases. The outcomes of but-for tests and mixed-motive inquiries
inevitably depend on particular circumstances, and there is room for
states intent on including arrestees in their DNA databases to engage
in strategic manipulation.

Fortunately, there is a better alternative
to the special-needs exception. It is a candid effort to create a new
exception to the general rule that a warrant and probable cause (or
other individualized suspicion) is essential to the reasonableness of
searches and seizures. A system of nonintrusive DNA sampling, limited
analysis of the DNA, and secure records of DNA genotypes differs from
traditional searches and seizures. The law should not overlook these
differences just because the practice aids criminal investigations and
hence is not classified as a "special need." The next
section therefore considers whether an exception for acquiring and
compiling biological trace information should be created in response
to the value of DNA evidence in enforcing the criminal laws.

4. The Trace Evidence Database Exception

DNA databases help solve crimes, and they
help avoid false convictions. That is what has led the federal
government to promote convicted offender databases in the states and
to earmark funds for reducing the backlog of unanalyzed DNA samples
from crime-scenes and victims.(190)
The difficulties of constitutional inquiries into "primary
purpose" notwithstanding, the stark truth is that DNA typing of
arrestees appeals to some politicians, law enforcement officials, and
victims of crimes because it promises more efficient identification of
criminals and more effective deterrence of crimes. Yet, in an effort
to fit DNA databases into existing categories, the analysis thus far
has largely ignored this most powerful reason for establishing
databases. We have seen that the Fourth Amendment permits the
acquisition, for administrative purposes, of DNA records on
individuals placed in custody, but that existing exceptions to the
warrant requirement may not extend beyond such recordkeeping.

Nevertheless, the existing exceptions to
the warrant requirement are not ancient specimens of an extinct
species frozen in amber. They are living creations whose structures
continue to evolve and whose number is not fixed. Although new
exceptions are not created lightly,(191)
there are powerful crime-control reasons for a state to establish DNA
databases for convicted offenders or arrestees, the databases can be
structured to respect most individual privacy interests, they can be
administered fairly, and they can be accommodated with a specific and limited
[---------------499---------------]
exception to the warrant requirement. Consequently, it is
neither heretical nor Quixotic to pose the question whether such an
exception should be recognized. The answer turns on the same type of
balancing that the Court performs in special-needs cases. The pivotal
factors are the gravity of the privacy invasion, the practicality and
value of securing a warrant and requiring individual suspicion, and
the importance of the government's interest.(192)

The attenuated privacy interest.
As discussed in Part IV.A, the physical intrusion is minimal,
especially if the surface of the skin is not penetrated. Certainly, it
is far less offensive than the body cavity searches of arrestees
upheld in Bell v. Wolfish.(193)
Furthermore, if there is adequate assurance that genotyping of only
"vacuous" loci can take place, no additional privacy
interests are implicated. (194)
Finally, there is
[---------------500---------------]
no unjustified detention of the person or entry into
the home or other property. In sum, if the collection and storage of
the genetic information is properly structured, the effect on the
security of "persons, houses, papers, and effects" is de
minimis.(195)

The point of a warrant. The
second consideration in ascertaining whether a DNA database exception
is sound involves two aspects of the warrant process: the extent to
which a judicial warrant would protect against unwarranted invasions
of privacy, and the extent to which the process would interfere with
the attainment of the benefits promised by the system of searches. As
the Court explained in Skinner v. Railway Labor Executives'
Association:(196)

An essential purpose of a warrant
requirement is to protect privacy interests by assuring citizens
subject to a search or seizure that such intrusions are not the random
or arbitrary acts of government agents. A warrant assures the citizen
that the intrusion is authorized by law, and that it is narrowly
limited in its objectives and scope . . . . A warrant also provides
the detached scrutiny of a neutral magistrate, and thus ensures an
objective determination whether an intrusion is justified in any given
case. . . .(197)

[---------------501---------------]

Because police officers have considerable
discretion to make warrantless arrests, and subjective factors come
into play, some risk of arbitrary or bad faith decisionmaking is
present with arrest-based DNA sampling. Nevertheless, if DNA sampling
is a standard part of the booking procedure and if the additional
invasion of privacy due to genotyping is negligible, the discretion
that exists at the time of an arrest is not substantially more
troublesome than it is in arrests not followed by DNA sampling.
(198) Indeed, if an officer lacks probable cause to arrest,
evidence that results from collecting DNA and finding a match in the
database of DNA from unsolved crimes is subject to exclusion.
Furthermore, there are many other avenues open to police who are
determined to obtain a DNA sample from a specific individual.
(199) In general, then, the risk of pretextual arrests
intended solely to secure a suspect's DNA profile is limited.

In short, in a system of routine
collection of DNA on arrest, judicial warrants do not greatly advance
privacy interests. But requiring warrants based on probable cause (or
a lesser quantum of proof) relating to offenses other than the one
that triggers the arrest would defeat the purpose of DNA databases.
These databases are an intelligence tool rather than a
"one-to-one" investigative device for linking a single,
known suspect with a specific, known offense.

The government interests. To be
balanced against the individual interest in the security of the person
or informational privacy are the government's interests. As with the
degree of the intrusion on personal privacy, these depend on the
nature of the DNA databanking system. In addition to the
administrative reasons to record biometric data that show a person's
true identity,(200) DNA sampling upon
arrest can help reduce serious crime in two ways. First, if a database
of trace evidence DNA genotypes from unsolved crimes is in place, a
new arrestee's genotype can be compared to those genotypes. This can
be called a one-to-many database query in that one arrestee's DNA
record is compared to the many records in the database of trace
evidence. A "hit" could result in continued pretrial
detention, prosecution, and conviction for the unsolved crime. Second,
even if no unsolved-crime database exists, the arrestee's
[---------------502---------------]
genotype can be included in a database of DNA records of arrestees.
(201) DNA found at a crime scene or on a victim in an
unsolved case could be analyzed and compared to all the potential
offender records. This can be called a many-to-one query in that the
many arrestee records are compared to the one trace evidence genotype.
A "hit" in the arrestee database could help solve the new
case. This enhancement in crime-fighting is the major interest that
courts have invoked to uphold convicted-offender databanking.
(202) As we have just seen, it runs in two directions. An
arrestee who commits crimes after being booked might be linked to
those crimes, and an arrestee who has committed other crimes before
being arrested might be linked to those past crimes.

But the very fact that there are
convicted-offender databases in place diminishes the need for arrestee
databases. (203) Many of the people
who are arrested already have convictions and should be in a
convicted-offender database. Arrestee databanking offers no new
information about these individuals. Of the remaining arrestees
without previous convictions, many will be convicted of the crime for
which they were arrested. Even without arrestee databanking, their
genotypes would be added to the convicted-offender database, albeit at
a later time. Of these, many will not be released pending trial in any
event. Of those who are released, many will not commit crimes.
Consequently, the total impact of taking DNA from arrestees could be small.

In several "special needs"
cases, however, the Court has found the balance to favor searches that
resulted in very few "hits." In Michigan Department of
State Police v. Sitz,(204) the
Supreme Court validated the state's use of a roadblock to discover
drunk drivers despite a resulting
[---------------503---------------]
arrest rate of only one to 1.5
percent. In Bell v. Wolfish,(205)
the Court upheld body cavity searches of pretrial detainees despite
the fact that there had been only one instance in which an inmate was
discovered attempting to smuggle contraband. Indeed, in Camara,
the fraction of housing inspections that led to findings of code
violations probably was quite small.

But in these cases, the numbers of hits
may be low precisely because the searches deter the conduct that they
target. In National Treasury Employees Union v. Von Raab,
(206) the Court noted in dictum that this point "is
well illustrated also by the Federal Government's practice of
requiring the search of all passengers seeking to board commercial
airliners, as well as the search of their carry-on luggage, without
any basis for suspecting any particular passenger of an untoward
motive."(207) Even though only
42,000 inspections of over 10 billion pieces of luggage have detected
firearms, the Court reasoned that "[w]hen the Government's
interest lies in deterring highly hazardous conduct, a low incidence
of such conduct, far from impugning the validity of the scheme for
implementing this interest, is more logically viewed as a hallmark of
success."(208)

The difficulty with applying this
reasoning to arrestee DNA databanking is that it is not obvious that
individuals who would otherwise commit murder, rape, or other crimes
for which DNA evidence is likely to be useful will be deterred by the
possibility of having their DNA analyzed in connection with an arrest
for an unrelated offense. Nevertheless, it can be argued that knowing
that one's DNA is on file could raise the perceived probability of
apprehension and thereby deter some offenses. Even so, if it seems
that an arrestee is no more likely than a randomly selected member of
the general public to commit or have committed offenses for which DNA
trace evidence will be found, courts may be reluctant to conclude that
the balance of interests supports DNA sampling.(209)
If reliable data were to demonstrate that individuals
arrested for various offenses tend to commit other offenses for which
DNA evidence frequently is available, then the argument for allowing
DNA sampling
[---------------504---------------]
upon arrest as a "biological trace evidence exception"
to the warrant requirement should prevail.(210)

5. The Importance of Safeguards

The lack of a warrant or individualized
suspicion does not, ipso facto, render DNA sampling upon arrest
unconstitutional. The "true identity" exception and the type
of balancing that generates the exceptions to the warrant requirement
can justify some systems of DNA sampling upon arrest. But
"some" does not mean "all," and informational
privacy must be respected if DNA sampling is to qualify as a
reasonable search and seizure.(211)
As David Korn has written:

[P]rogress in molecular genetics . . . and biomedical research . . .
have generated deep social concerns about the acquisition,
protection, and use of genetic information. That term,
freighted with mystique and imperfectly understood by most of the
populace, is generally regarded with awe and fear: awe because the
information is perceived to be intensely personal private, powerful,
pedigree-related, and predictive[,] and fear because the potential
misuse of such information can lead to insurance and employment
discrimination, disruption of personal and familiar well-being, and
stigmatization. (212)

[---------------505---------------]

Unfortunately, these fears are easily
exaggerated(213) and manipulated.
(214) The notion that our destiny is in our genes is as
untenable(215) as it is popular.
(216) Yet, the fact remains that DNA samples could be
analyzed for a number of markers associated with congenital diseases
or susceptibility to other diseases.(217)
Although health insurers are not especially interested in this
information and although a small explosion of state laws ban or
restrict its use in insurance and the workplace,(218)
the possibility that the government will allow the
samples to fall into the wrong hands or will misuse them for its own
purposes must not be ignored.(219)[---------------506---------------]

To pass constitutional muster, a system of
DNA databanking should include effective provisions to ensure the
security of the sensitive information inherent in DNA samples. Two
approaches to security are possible -- "front-loading" and
"back-loading." Front-loading seeks to preserve privacy by
curtailing the creation of information.(220)
In the context of forensic DNA databanking, it confines the government
to collecting and retaining the minimum of information that is needed
for identification purposes. A back-loaded system forces the
government to keep the information in its own hands and to use it only
as authorized.(221)

A heavily front-loaded system would limit
authorities to analyzing genotypes that have no more social
significance than other identifying features such as skin color, eye
color, fingerprint patterns, and blood and tissue types. These
genotypes do not expose our "most profound personal
secrets,"(222) and they are far
less sensitive or revealing than the vast array of nongenetic
information that is the traditional subject of privacy protection.
(223) The most puissant form of front-loading would be the
automatic destruction of the samples once the identifying alleles are
recorded. The result would be a database of computer-searchable -- but
socially trivial--numerically encoded genotypic identifiers. DNA
databanking with personal identifiers would not be practiced, although
anonymized samples might be retained for quality control or research
purposes.(224)

A back-loaded system would tolerate DNA
databanks, but it would prevent unauthorized access to and use of the
personally identified DNA samples by locking them up and establishing
criminal or other penalties for unauthorized access or use. Rather
than attempting to stop the collection of information "up
front," it strives to curtail the dissemination and
[---------------507---------------]
use of the information. This is the approach currently taken with law enforcement
databanks.(225) It cannot assure
that misuse never will occur, but the level of security is
considerably higher than that sometimes surrounding DNA samples in the
private sector.

Of course, no system can reduce the risk
of unauthorized disclosure to zero. But the Constitution does not
require perfection. Cases like Whalen v. Roe(226) indicate that the Court is unwilling to invalidate
even those databases containing information that is indisputably
"personal in character and potentially embarrassing or
harmful"(227) merely because of
the unavoidable risk of abuse.(228)
In Whalen, the Court deemed the combination of (1) a
"statutory or regulatory duty to avoid unwarranted
disclosures,"(229) (2) physical
measures to ensure security, and (3) a history of operation that had
not been marked by breaches of confidentiality, adequate to satisfy
the interest of patients in the privacy of their prescriptions.
(230) No less should be required of a government databank of
DNA samples. With sufficient safeguards -- but not without them--a
system for collecting DNA on arrest, analyzing it for appropriate
genotypes, and storing those data for law enforcement purposes should
be constitutional.

CONCLUSION

The analytical framework for evaluating
the constitutionality of routine DNA sampling of arrestees is complex,
and the outcome of the analysis is debatable. Of all the
constitutional guarantees, the Fourth
[---------------508---------------]
Amendment casts the longest shadow over proposals to take samples from all individuals
brought into custody. Although some procedures for obtaining and
analyzing the DNA arguably do not even rise to the level of a search,
others clearly do. Even so, for all methods of sampling, there is a
sharply diminished expectation or invasion of privacy as compared to
the traditional search for contraband or instrumentalities of a crime,
and the normal reasons for a warrant and individualized suspicion are
attenuated. Where the primary purpose of DNA sampling on arrest is the
acquisition of a permanent personal identifier for individuals who are
in custody, the traditional "true identity" exception to the
warrant requirement for fingerprinting, photographing, and the like,
as well as the "special needs" line of cases support the
collection of the DNA records.

But DNA databases can do much more than
discern an individual's true identity. They can associate individuals
with crimes. A database created and used for general law enforcement
purposes fits poorly, if at all, into the existing mold of Fourth
Amendment exceptions to the warrant requirement. Nonetheless, a cogent
argument can be made for a new exception to the warrant requirement
for the relatively nonintrusive collection of nonstigmatizing,
personally identifying markers that can generate a list of probable
perpetrators of serious crimes. The Reasonableness Clause requires a
balancing of the nature and extent of the infringement of the
individual's privacy against the value of having a database of
genotypes. With convicted-offender databases, every court that has
undertaken this balancing has concluded that DNA databanking is
reasonable. Yet, the very existence of these offender databases,
combined with the routine practice of fingerprinting arrestees,
weakens the case for the constitutionality of compulsory DNA sampling
upon arrest. Which way the balance tips is a close question, but one
that should be resolved in favor of a minimally invasive, highly
secure system for DNA databanking even at the point of arrest.(231)

NOTES

* Regents' Professor and Fellow, Center for the
Study of Law Science and Technology, Arizona State University, College
of Law. The article is the result of research undertaken for the
National Commission on the Future of DNA Evidence. The article has
benefited greatly from comments from many readers, including
Paul Giannelli, Fran Gilligan, Pamela Karlan, Barry Scheck,
David Sklansky, Ralph Spritzer, and members of the Commission's Working Group on
Legal Issues, especially Edward Imwinkelried and Michael Smith. Judith
Shelling and Christine Meis provided research assistance.

1. See Robin Cheryl Miller, Annotation,
Validity, Construction, and Operation of State DNA Database Statutes,
76 A.L.R.5th 239 (2000). There are many other sources of DNA samples that
law enforcement officials might wish to examine in specific cases. Many
samples are held by hospitals, public health authorities, health maintenance
organizations, biomedical researchers, and the military. See, e.g., Stored
Tissue Samples: Ethical, Legal, and Public Policy Implications (Robert
A. Weir ed., 1998). Access to the samples in these non-law-enforcement
repositories, for the purpose of criminal investigations or
prosecutions, is discussed in Edward J. Imwinkelried & D.H. Kaye, DNA
Typing: Emerging or Neglected Issues, 76 Wash. L. Rev. 413 (2001).

2. See D.H. Kaye, Science in Evidence
224-26 (1997). For example, in St. Paul, Minnesota, a man wearing a
nylon stocking over his face and armed with a knife jumped out from
behind bushes and assaulted a woman who was walking by. Semen
recovered from the victim's skirt and saliva was analyzed using DNA
technology. When the resulting DNA profile was searched against
Minnesota's database, a matching profile led police to the rapist.
Stephen J. Niezgoda, CODIS Program Overview, Proceedings from
the Eighth International Symposium on Human Identification (Promega
Corp. ed., 1999). These "cold hits" can stretch back decades
to solve "cold cases" -- those that the police had given up
on. See, e.g., C.J. Chivers, DNA Match Implicates Inmate
in '79 Murder, Officials Say, N. Y. Times, Mar. 13, 2000, at B1.

3. Most states currently collect samples only
from people who are convicted of sex crimes and a few other violent
offenses -- about eight percent of felons each year. Robbers,
kidnappers, burglars and those convicted of attempted crimes usually
are not included. Richard Perez-Pena & Jayson Blair, N.Y.
State to Develop Database on Felons' DNA as Investigative Tool,
N.Y. Times, Aug. 7, 1999, at A1. But the coverage will grow. New York, for
example, adopted a law that will apply to about half the defendants
convicted of felonies. The crimes that will put DNA information into the
database include murder, manslaughter, assault, sex crimes, drug
dealing, robbery, burglary, grand larceny, and the most serious
categories of drug possession, attempted murder, arson, kidnapping and
attempted burglary. Exempted would be most drug possession crimes, as
well as child abuse and drunken driving. Id. Eight states --
Alabama, Maine, Massachusetts, New Mexico, Tennessee, Vermont,
Virginia and Wyoming -- already cast their nets even more widely. Id.

9. Address by David Werrett, 18th International Congress on Forensic Haemogenetics, San Francisco, Aug.
19, 1999. In the United Kingdom, the records and samples were destroyed if a conviction did not ensue, id., but the Criminal Justice and
Police Act, 2001, c.16 (Eng.) now provides for indefinite retention.

10. See 15 La Rev. Stat. § 609(A) (1998) ("A person who is arrested for a felony sex offense or
other specified offense on or after September 1, 1999, shall have a DNA sample drawn or taken at the same time he is fingerprinted
pursuant to the booking procedure."). Despite the language of the statute, it is reported that the state will delay implementing the
requirement for lack of funding and testing facilities. See Guy Gugliotta, A Rush to DNA Sampling; Vital Police Tool? Affront
to Liberty? Both?, Wash. Post, July 7, 1999, at A1, available at 1999 WL 17012783.
Another state has abandoned the experiment. A South Dakota statute provided that "[t]he Attorney
General shall procure and file for record genetic marker grouping analysis information from any person taken into custody for a
violation of the provisions of chapter 22-22." However, in 1997 the law was amended to restrict the collection of samples from
convicted offenders. See S.D. Codified Laws § 23-5-14 (Supp. 1999).
A few states have authorized taking DNA after indictment. See Cal. Penal Code § 207(b)(3) ("For
the purposes of this subdivision, 'a suspect' means a person against whom an information or indictment has been filed for one of the crimes
listed in subdivision (a) of Section 296. For the purposes of this subdivision, a person shall remain a suspect for two years from the
date of the filing of the information or indictment or until the DNA laboratory receives notification that the person has been acquitted of
the charges or the charges were dismissed.").
Local authorities also might begin to collect samples on arrest without waiting for state legislation or
additional funding. In August, 1999, Salt Lake County Sheriff Aaron Kennard announced his office's intention to sample all arrestees' DNA
and to seek federal funds for an expansion of forensic laboratory capacity to match the increase in demand for DNA analysis that would
ensue. See Jennifer Dobner, DNA Test Sought on All Booked at New Jail, Deseret News, Aug. 4, 1999, at A1.

11. A bill introduced early in 1999, in the
Connecticut General Assembly would require the collection of DNA from
those arrested of any criminal offense. The bill does not require
destruction of the sample unless the arrestee is not later
"convicted of an offense." 1999 Ct. S.B. 315 (introduced
Jan. 15, 1999). A bill introduced in the North Carolina General
Assembly would require that DNA samples be taken from all individuals
arrested for felonies. N.C. Senate Bill 165 (introduced Feb. 23,
1999). It would allow individuals to petition for
expungement of a "DNA record or profile" after "the
felony arrest or conviction . . . has been reversed and the case
dismissed." Id. § 15A-266.10(a). New York Senate Bill
1795, introduced January 30, 2001, would require individuals arrested
for a variety of felonies to provide a sample of blood for DNA testing;
cf. N.Y. Assembly Bill 4486 § 2, introduced February 12, 2001
(providing that the executive branch develop "a statewide strategic plan
for requiring any person arrested for an offense for which the fingerprints
of the person are required to be taken . . . also be required to provide
at the time of arrest, a sample appropriate for DNA testing to determine
identification characteristics specific to such person for inclusion in
the state DNA identification index").

12. In December 1998, New York Police
Commissioner Howard Safir and Mayor Rudolph Giuliani called on the New
York legislature to consider expanding the New York state databanking
law to allow DNA collection from every person arrested. See
John Kifner, Safir Says DNA Proposal Would Cut Property Crime,
N.Y. Times, Dec. 13, 1998, § 1, at 51. The International
Association of Police Chiefs soon endorsed the concept. See Jayson
Blair, Police Chiefs Join in Call for More DNA Sampling, N.Y.
Times, Aug. 16, 1999, at B5. The Republican candidate has made it part
of his campaign for Attorney General of Virginia. See Laurence
Hammack, Kilgore Wants to Expand DNA Databases to Suspects,
Roanoke Times & World News, Aug. 3, 2001, at A1.

15. See, e.g., Bureau of Justice Statistics, U.S. Dep't of Justice, Survey of DNA Crime
Laboratories 1998, Feb. 2000 (reporting that as of the end of 1997, 69% of DNA labs had a backlog of 6,800 known and unknown subject cases
and 287,000 convicted offender samples); Guy Gugliotta, A Rush to DNA Sampling; Vital Police Tool? Affront to Liberty? Both?, Wash.
Post, July 7, 1999, at A01, available at1999 WL 17012783 (reporting "estimates that 500,000 samples taken during the last four years
are awaiting analysis and that an additional 1 million to 1.5 million offenders qualify for testing that has not been done").

16. See Assoc. Press, State Police Move to Ease Backlog at Crime Labs by 2003, St. Louis Post Dispatch,
July 20, 2001, at B1 (reporting on plans in Illinois); Naftali Bendavid, U.S. Targets DNA Backlog: Agency to Spend
$30 Million to Aid State Crime Labs, Chi. Trib., Aug. 2, 2001, at 10; Bureau of Justice Statistics, supra
note 15 (reporting that to alleviate case backlogs 44% of the laboratories had hired additional staff, 34% were using overtime, 13% were contracting
with private labs, and 28% were using other methods); Maxine Bernstein DNA Crime Lab Scores "Cold Hits," Portland Oregonian, Apr. 17, 2001,
at A01, available at 2001 WL 3595398 (reporting that with federal assistance, Oregon's state laboratory has nearly eliminated its backlog).

17. For examples of emerging technologies that may permit rapid analysis of large numbers of DNA samples, see J.A. Monforte & C.H.
Becker, High-throughput DNA Analysis by Time-of-flight Mass Spectrometry, 3 Nature Medicine 360 (1997); D.G.
Wang et al., Large-scale Identification, Mapping, and Genotyping of Single-nucleotide Polymorphisms in the Human Genome, 280
Science 1077 (1998) (hybridization chip). Indeed, the prospect of portable devices for squad cars that would determine and transmit a
record of identifying DNA types using "chips" that perform capillary electrophoresis is no longer science fiction. Cf.
Nat'l Inst. of Justice, The National Institute of Justice and Advances in Forensic Science and Technology Series: National Law
Enforcement and Corrections Technology Center Bulletin, Mar. 1998 available athttp://www.nlectc.org/txtfiles/12575_5.html,
(visited Sept. 14, 1999):

NIJ is funding Lockheed Martin Energy Research at Oak Ridge National Laboratory . . . to develop another type of disposable microchip
device capable of carrying out all sample processing and analytical steps. Blood or other biological samples could be collected directly
into the device, which could then be sealed for transport and analysis, eliminating post-collection handling and exposure of
samples. Ultimately, such miniature devices could be used for DNA testing at the crime scene.

See also Kevin Flynn, Fighting Crime with Ingenuity, 007 Style: Gee-Whiz Police Gadgets Get a Trial Run in New York,
N.Y. Times, Mar. 7, 2000, at B1.

19. Some state constitutions contain other provisions that may be applicable, and some states interpret their
constitutions differently than the Supreme Court interprets the United States Constitution. See, e.g., Norman-Bloodsaw v. Lawrence
Berkeley Lab., 135 F.3d 1260, 1270-71 (9th Cir. 1998) (analyzing an employer's genetic testing program under the right to privacy found
in Article I, § 1 of the California Constitution as well as the U.S. Constitution). This article is confined to an analysis of the federal constitution.

21. See Kaye, Two Fallacies, supra note 18. A DNA "allele" is a measurable
variation (from person to person) in the structure of the DNA at a given locus. Thus, the collection of the alleles at the 13 STR loci is
the person's "genotype." Forensic scientists often refer to
such DNA genotypes with the nontechnical term "profiles."

24. Each state participating in the national
program may have a single State DNA Index System (SDIS) that pools
data from laboratories within the state and that is the pathway to the
national system. Id.

25. The FBI began implementing NDIS in October
1998, by combining the eight state DNA offender databanks in
California, Florida, Illinois, Minnesota, North Carolina, Oregon, Utah
and Virginia. See Nicholas Wade, F.B.I. Set to Open Its
DNA Database for Fighting Crime, N.Y. Times, Oct. 12, 1998, at
A1. In addition to the "convicted offender index," NDIS
contains a "forensic index" of crime scene profiles
permitting case-to-case matches (see supra note 20), an
"unidentified persons index," a "victims index,"
and a population database of anonymous DNA genotypes that can be used
to estimate the probability that a DNA sample picked at random from
the population would match a crime scene sample. Stephen J. Niezgoda & Barry
Brown, The FBI Laboratory's Combined DNA Index System Program, in
Proceedings from the Sixth International Symposium on Human Identification 1995
149-52 (Promega Corp. ed., 1996).

29. Indeed, Maryland law goes so far as to
specify that "[a]ny match obtained between an evidence sample and
a data base entry may only be used as probable cause to obtain a blood
sample from the subject and is not admissible at trial unless
confirmed by additional testing." Md. Code art. 88B § 12A(l)
(1998).

33. See Holt v. United States, 218
U.S. 245, 252 (1910). In Holt, Mr. Justice Holmes dismissed
as an "extravagant extension of the Fifth Amendment" the
argument that it violated the privilege to require a defendant to put
on a blouse for identification purposes. He explained that "the
prohibition of compelling a man in a criminal court to be witness
against himself is a prohibition of the use of physical or moral
compulsion to extort communications from him, not an exclusion of his
body as evidence when it may be material." Id. at
252-53. See also Downs v. Swann, 73 A. 653 (Md. 1909)
(reasoning that police may photograph and make bodily measurements to
identify an arrestee without infringing the general liberty interest
or the privilege against self-incrimination).

More recently, the Court has stated that
"to be testimonial, an accused's communication must
itself, explicitly or implicitly, relate a factual assertion or
disclose information." Doe v. United States, 487 U.S. 201, 210
(1988). Accordingly, the Fifth Amendment did not extend to a consent
form waiving a privacy interest in foreign bank records because the
consent form spoke in the hypothetical and did not identify any
particular banks, accounts, or private records; it neither
"communicate[d] any factual assertions, implicit or explicit,
[n]or convey[ed] any information to the Government." Id.
at 215.

34. See, e.g., United States v. Dionisio, 410 U.S. 1,
7 (1973) (suspects could be compelled to read a transcript to provide
a voice exemplar because the "voice recordings were to be used
solely to measure the physical properties of the witnesses' voices,
not for the testimonial or communicative content of what was to be
said"); United States v. Wade, 388 U.S. 218 (1967) (a suspect could be
compelled to participate in a lineup and to repeat a phrase provided
by the police so that witnesses could view him and listen to his
voice); Gilbert v. California, 388 U.S. 263, 266-67 (1967) (a suspect
could be compelled to provide a handwriting exemplar because "in
contrast to the content of what is written, like the voice or body
itself, is an identifying physical characteristic outside [the
privilege's] protection").

38. See also United States v. Hubbell,
167 F.3d 552, 573-74 (D.C. Cir. 1999) (dictum). A contrary view is
expressed in Janet C. Hoeffel, Note, The Dark Side of DNA
Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant,
42 Stan. L. Rev. 465 (1990), which claims that
"the unique autobiographical nature" of DNA identification
evidence should place it the category of testimonial evidence." Id.
at 533. For criticism of this view, see Burk & Hess, supra
note 18, at 18 (concluding that "there is no reason to
believe that DNA evidence will be or should be treated any differently
than any other type of physical evidence").

39. In addition, even if the extraction of
biological material somehow could be construed as testimonial, the
implications of the privilege against self-incrimination are not
entirely clear. Under Pennsylvania v. Muniz, 496 U.S. 582
(1990), it appears that arrestees might not need to be advised that
the privilege entitles them to decline to give a DNA sample. In Muniz,
a plurality opinion for four justices written by Justice Brennan
reasoned that "questions regarding [a suspect's] name, address,
height, weight, eye color, date of birth, and current age . . . fall
within a 'routine booking question' exception which exempts from Miranda's
coverage questions to secure the 'biographical data necessary to
complete booking or pretrial services.'" Id. at 601
(some internal quotation marks and citations omitted). Another four
justices, in an opinion by Chief Justice Rehnquist, took the position
that the questions "were not testimonial and do not warrant
application of the privilege," making "it . . . unnecessary
to determine whether the questions fall within the 'routine booking
question' exception to Miranda Justice Brennan
recognizes." Id. at 608. Only Justice Marshall took
issue with the proposed "routine booking exception" to the
application of Miranda v. Arizona, 384 U.S. 436 (1966). Id.
at 608-09.

41. Cf. Cruzan v. Director, Missouri
Dep't of Health, 497 U.S. 261, 269 (1990) (stating that "[e]very
human being of adult years and sound mind has a right to determine
what shall be done with his own body.").

42. Id. at 172.
Indeed, it is questionable whether today's
Court even would apply a due process analysis. See County of
Sacramento v. Lewis, 523 U.S. 833, 849 n.9 (1998) (Souter, J., noting
that "Rochin, of course, was decided long before
Graham v. Connor (and Mapp v. Ohio, 367 U.S. 643 (1961)), and today
would be treated under the Fourth Amendment, albeit with the same
result."). In Rochin v, California, 342 U.S. 165
(1952), to which Justice Souter refers, police broke into a suspect's
room, attempted to extract narcotics capsules he had put into his
mouth, took him to a hospital, and directed that an emetic be
administered to induce vomiting. This course of conduct, the Court
wrote, "shocks the conscience" in that:

Illegally breaking into the privacy of the petitioner, the struggle
to open his mouth and remove what was there, the forcible extraction
of his stomach's contents--this course of proceeding by agents of
government to obtain evidence is bound to offend even hardened
sensibilities. They are methods too close to the rack and the screw
to permit of constitutional differentiation.

Furthermore, due process is not measured by the yardstick of
personal reaction or the sphygmogram of the most sensitive person,
but by that whole community sense of "decency and
fairness" that has been woven by common experience into the
fabric of acceptable conduct. It is on this bedrock that this Court
has established the concept of due process. The blood test procedure
has become routine in our everyday life. It is a ritual for those
going into the military service as well as those applying for
marriage licenses. Many colleges require such tests before
permitting entrance and literally millions of us have voluntarily
gone through the same, though a longer, routine in becoming blood
donors. Likewise, we note that a majority of our States have either
enacted statutes in some form authorizing tests of this nature or
permit findings so obtained to be admitted in evidence. We therefore
conclude that a blood test taken by a skilled technician is not such
"conduct that shocks the conscience," nor such a method of
obtaining evidence that it offends a "sense of justice."

57. See, e.g., Roe v. Wade, 410 U.S.
113, 155 (1973) ("Where certain 'fundamental rights' are
involved, the Court has held that regulation limiting these rights may
be justified only by a 'compelling state interest,' . . . and that
legislative enactments must be narrowly drawn to express only the
legitimate state interests at stake.").

60. Id. at 603-04. Whalen
rejected the Fourth Amendment as the basis for either of these rights.
See id. at 604 n.32 ("The Roe appellees also
claim that a constitutional privacy right emanates from the Fourth
Amendment, citing language in Terry v. Ohio, 392 U.S. 1, 9, at a point
where it quotes from Katz v. United States, 389 U.S. 347. But those
cases involve affirmative, unannounced, narrowly focused intrusions
into individual privacy during the course of criminal investigations.
We have never carried the Fourth Amendment's interest in privacy as
far as the Roe appellees would have us. We decline to do so
now.").

A final word about issues we have not decided. We are not unaware of
the threat to privacy implicit in the accumulation of vast amounts
of personal information in computerized data banks or other massive
government files. The collection of taxes, the distribution of
welfare and social security benefits, the supervision of public
health, the direction of our Armed Forces, and the enforcement of
the criminal laws all require the orderly preservation of great
quantities of information, much of which is personal in character
and potentially embarrassing or harmful if disclosed. The right to
collect and use such data for public purposes is typically
accompanied by a concomitant statutory or regulatory duty to avoid
unwarranted disclosures. Recognizing that in some circumstances that
duty arguably has its roots in the Constitution, nevertheless New
York's statutory scheme, and its implementing administrative
procedures, evidence a proper concern with, and protection of, the
individual's interest in privacy. We therefore need not, and do not,
decide any question which might be presented by the unwarranted
disclosure.

65. "In this case, as the Court's opinion
makes clear, the State's carefully designed program includes numerous
safeguards intended to forestall the danger of indiscriminate
disclosure. Given this serious and, so far as the record shows,
successful effort to prevent abuse and limit access to the personal
information at issue, I cannot say that the statute's provisions for
computer storage, on their face, amount to a deprivation of
constitutionally protected privacy interests, any more than the more
traditional reporting provisions." Id.

68. Plaintiff had entered into a conciliation
agreement under which Delta Airlines hired him as a customer services
agent. Notwithstanding the Whalen Court's explicit disclaimer
of any decision regarding the constitutional basis of a right to
nondisclosure of medical information, the Second Circuit wrote that Whalen
"recognized" such a right. 15 F.3d at 267. Departing from
Justice Brennan's view that the right to nondisclosure could be
overcome only by a compelling state interest, the Court of Appeals
remanded for further findings under an intermediate level of
constitutional scrutiny that required only a substantial state
interest to overcome the privacy right.

71. Administrative and clerical employees at a
national laboratory operated by state and federal authorities alleged
that the laboratory tested their blood and urine for these conditions
without their knowledge or consent. This testing, they contended,
violated Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act (ADA), and their right to privacy as guaranteed by
the constitutions of California and the United States. The district
court granted the defendants' motions for dismissal, judgment on the
pleadings, and summary judgment on all these claims. The Ninth Circuit
affirmed as to the ADA claims, but reversed as to the Title VII and
state and federal privacy claims. The court of appeals recognized that
cases like Doe, "defining the privacy interest in
medical information[,] have typically involved its disclosure to
'third' parties, rather than the collection of information by illicit
means," but thought "it goes without saying that the most
basic violation possible involves the performance of unauthorized tests --
that is, the non-consensual retrieval of previously unrevealed
medical information that may be unknown even to plaintiffs." Id.
at 1269. Having discerned a liberty right under the Due Process
Clause, however, the Ninth Circuit proceeded to analyze that right
solely in Fourth Amendment terms, balancing the government's interest
in collecting the information against the nature of the invasion of
privacy. Id. The court reasoned that while the government had
no legitimate interest in conducting the tests as alleged, the
invasion was profound because it involved especially sensitive
information about the health or genetic status of the employees. Id.
at 1269-70.

72. See supra note 51. Another case
sometimes cited in this context is Nixon v. Administrator of
General Services, 433 U.S. 425 (1977). E.g., Burk &
Hess, supra note 18, at 34-35. Nixon recognizes that
government inspection of family and financial records implicates an
interest cognizable under the Due Process Clause.

73. See American Fed'n of Gov't
Employees, AFL-CIO v. Dep't of Hous. & Urban Dev., 118 F.3d
786, 788 (D.C. Cir. 1997) (reviewing and analyzing the division among
the circuits); Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir. 1995)
(holding that no constitutionally protected privacy interest exists in
medical records). The Fourth Circuit avoided the question in Ferguson
v. City of Charleston, 186 F.3d 469 (4th Cir. 1999), rev'd,
121 S.Ct. 1281 (2001), when it upheld a policy
instituted by the Medical University of South Carolina under which
urine samples from maternity patients suspected of using cocaine were
tested for cocaine and patients who tested positive were given a
choice between being arrested and receiving drug counseling. The court
of appeals reasoned that the arguable due process right yielded to the
state's interest in protecting the fetus. On a write of cirtiorari, the Supreme
Court did not consider whether the collection of the information about the urine
sample or the transmission of that information from the hospital to the police
implicates a liberty interest under the Due Process Clause. Instead, it limited
its analysis to the "special needs" exception to the warrant
requirement of the Fourth Amendment. See infra Part IV.B.3.

74. This qualification should not be
overlooked. See infra Part IV.B.4.

80. See id. at 351 ("What a
person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection . . . . But
what he seeks to preserve as private, even in an area accessible to
the public, may be constitutionally protected.").

There is no basis for constructing a wall of privacy against the
grand jury which does not exist in casual contacts with strangers.
Hence no intrusion into an individual's privacy results from
compelled execution of handwriting or voice exemplars; nothing is
being exposed to the grand jury that has not previously been exposed
to the public at large.

84. In Dionisio itself, the Court
observed that fingerprinting "involves none of the probing into
an individual's private life and thoughts that marks an interrogation
or search." 410 U.S. at 15 (quoting Davis v. Mississippi, 394
U.S. 721, 727 (1969)). However, Davis did not hold that
fingerprinting was not subject to the Fourth Amendment. Rather, the Davis
Court suggested in dictum that "[i]t is arguable, however, that,
because of the unique nature of the fingerprinting process, such
detentions might, under narrowly defined circumstances, be found to
comply with the Fourth Amendment even though there is no probable
cause in the traditional sense." 394 U.S. at 727. Even so, the
implication is that the detention to take fingerprints is a seizure of
the person, but "the fingerprinting process itself" is not a
search.

Likewise, in Cardwell v. Lewis,
417 U.S. 583 (1974), a plurality implied that scraping paint from the
exterior of a suspect's car and examining it in the laboratory did not
rise to the level of a search. Id. at 591-92 ("With
the 'search' limited to the examination of the tire on the wheel and
the taking of paint scrapings from the exterior of the vehicle left in
the public parking lot, we fail to comprehend what expectation of
privacy was infringed. Stated simply, the invasion of privacy, 'if it
can be said to exist, is abstract and theoretical.'") (plurality
opinion, footnote and citation omitted). But see id. at 592
("Under circumstances such as these, where probable cause
exists, a warrantless examination of the exterior of a car is not
unreasonable under the Fourth and Fourteenth Amendments.")
(emphasis added).

86. See also State v. Inman, 301 A.2d
348, 355-56 (Me. 1973) ("By the very reason of their nature it
cannot be considered that there is a constitutionally protected
expectation of privacy as to the characteristics of the fingerprint
pattern of one validly in police custody any more than it can be said
there is a constitutionally protected expectation of privacy as to any
other outward physical characteristic of one whose person has been
validly seized."); Doe v. Poritz, 662 A.2d 367, 381 n.8 (N.J.
1995) ("because plaintiff has no reasonable expectation of
privacy in his fingerprints, photograph or matters of public record,
the requirement to provide such information as part of the
registration process [for convicted sex offenders] does not constitute
a search").

89. DNA also can be extracted from hair samples
that include cells from the roots. Courts are divided on the question
of whether taking a hair sample rises to the level of a Fourth
Amendment search or seizure. See, e.g., United States v.
DeParias, 805 F.2d 1447, 1456-57 (11th Cir. 1986); United States v.
Anderson, 739 F.2d 1254, 1256-57 (7th Cir. 1984). In In re
Grand Jury Proceedings (Mills), 686 F.2d 135 (3d Cir. 1982), a divided
panel held that because hair was visible to the public, Dionisio
governed as to removing hairs by cutting, but noted that extracting
the portion below the skin might make the result in Cupp v. Murphy,
412 U.S. 291 (1973) (see infra text accompanying notes 94-97) applicable.

99. Winston held that a court-approved
removal of a bullet lodged just below the skin of a suspect done under
a local anesthetic was an unreasonable search, given the availability
of other evidence against the suspect and conflicting medical
testimony on the risks of the operation.

100. Terry held the Fourth Amendment
applicable to "stop and frisks." Balancing the extent of the
invasion against the value to law enforcement, however, the court held
that investigative stops and "pat-downs" merely required
"reasonable suspicion"; neither a warrant nor probable cause
was necessary.

102. Technically, Skinner leaves open
the question whether taking air from the mouth instead of the alveoli
would be sufficiently less intrusive to avoid the "search"
classification. After all, that air is, in some sense, more exposed to
the outside world than the "deep lung" air that Skinner
protects. The tenuousness of such distinctions points up the
limitations of Skinner's emphasis on location. The question
of what investigations of the body or its contents should be
considered a search involves a richer set of considerations, some of
which are discussed at other points in Skinner.

103. Most lower courts have held that
compelling a person to produce a saliva sample is a search. See
United States v. Nicolosi, 885 F. Supp. 50, 56 (E.D.N.Y. 1995); Henry v.
Ryan, 775 F. Supp. 247, 253 (N.D. Ill. 1991); State v. Ostroski, 518 A.2d
915 (Conn. 1986); State v. Reeves, 671 P.2d 553 (Kan. 1983). But
see People v. Wealer, 636 N.E.2d 1129, 1132 (Ill. Ct. App. 1994)
(although the state conceded that taking and analyzing saliva is a
search, "the level of intrusion necessary to obtain a saliva
sample would on its face appear lower than that required for
extracting blood"); State v. Zuniga, 357 S.E.2d 898 (N.C. 1987)
(taking of saliva is unintrusive and therefore not a search).

104. One might have hoped that the Supreme Court's
latest encounter with defining a "search" in Kyllo v. United States,
121 S.Ct. 2038 (2001), would have clarified the viability of the "public
exposure" theory. In Kyllo, a federal agent used an infrared
detector to find that "the roof over the garage and a side wall of
petitioner's home were relatively hot compared to the rest of the home and
substantially warmer than neighboring homes in the triplex." Id. at
2041. "Based on tips from informants, utility bills, and the thermal
imaging, a federal magistrate judge issued a warrant authorizing a search of [Kyllo's]
home, and the agents found an indoor growing operation involving more than 100
plants." Id. Before trial, Kyllo moved to suppress the evidence on
the ground that the thermal imaging required a warrant. When the motion was
denied, he entered a conditional guilty plea and appealed,. The Ninth Circuit
Court of Appeals ultimately affirmed, reasoning that defendant had neither a
subjective nor an objectively reasonable expectation that "amorphous 'hot
spots' on the roof and exterior wall" would go unobserved. Id. In
other words, according to the Court of Appeals, there was no "search."

A sharply divided Supreme Court reversed. At first
blush, this reversal seems to undermine the view that inspecting materials on
the surface of the body is not a search. After all, if the use of an instrument
to capture infrared rays coming from the surface of a house is a search, it
might seem that so is the use of an instrument to capture and analyze DNA on the
surface of the body. However, the rationale of Kyllo is quite limited.
Justice Scalia's opinion for a majority of five Justices looks to the
historically recognized zone of privacy in which government surveillance is
prohibited. Apparently assuming that Eighteenth Century constables would have
had to enter the house to detect heat sources -- a trespass that is the very
paradigm of a search -- the majority announced that the infrared scan also was a
search; as the Court put it, "obtaining by sense-enhancing technology any
information regarding the interior of the home that could not otherwise have
been obtained without physical 'intrusion into a constitutionally protected
area,' constitutes a search -- at least where (as here) the technology in
question is not in general public use." Id. at 2043. In other words,
Kyllo establishes no more than that the use of technology that is
functionally equivalent to trespassing into a home to acquire information is a
search. This result, the Court suggested, was necessary for "the
preservation of that degree of privacy against government that existed when the
Fourth Amendment was adopted." Id. To hold otherwise, the majority
insisted, would "permit police technology to erode the privacy [originally]
guaranteed by the Fourth Amendment." Id.

In contrast, the Fourth Amendment's protections against
searches (as opposed to seizures) of the person lack "roots deep in the
common law . . . ." Id. As the Schmerber Court observed, in
"dealing with intrusions into the human body rather than with state
interferences with property relationships or private papers -- 'houses, papers,
and effects' -- we write on a clean slate." 384 U.S. at 767-78. Therefore, Kyllo's
functional equivalence test does not dictate the conclusion that it is a
"search" to take from the surface of a person's skin cells that are
constantly being shed and to analyze the DNA they contain. Unlike infrared
scanning that, in effect, places the police in the interior of a house, DNA
sampling and analysis is not functionally equivalent to any Eighteenth Century
practice proscribed by the Fourth Amendment.

108. The lower courts invariably deem blood
sampling for DNA analysis to constitute a search or seizure, but their
reasoning often is cursory. They rarely consider the nature of the
extraction or the informational-privacy aspect of the subsequent
analysis. But see People v. Wealer, 636 N.E.2d 1129, 1132
(Ill. App. Ct. 1994) ("conducting additional analysis on the
sample further implicates Fourth Amendment interests").

110. See Bell v. Wolfish, 441 U.S.
520, 559 (1979) ("The test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical
application. In each case it requires a balancing of the need for the
particular search against the invasion of personal rights that the
search entails. Courts must consider the scope of the particular
intrusion, the manner in which it is conducted, the justification for
initiating it, and the place in which it is conducted. E.g.,
United States v. Ramsey, 431 U.S. 606 (1977); United States v.
Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Brignoni-Ponce,
422 U.S. 873 (1975); Terry v. Ohio, 392 U.S. 1, 8-31 (1968); Katz v. United
States, 389 U.S. 347, 348-59 (1967); Schmerber v. California, 384 U.S. 757,
766-72 (1966).").

111. See, e.g., Mincey v. Arizona,
437 U.S. 385, 390 (1978) (asserting that "[t]he Fourth Amendment
proscribes all unreasonable searches and seizures, and it is a
cardinal principle that 'searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment -- subject only to a few
specifically established and well-delineated exceptions,'"
quoting Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes
omitted), and citing South Dakota v. Opperman, 428 U.S. 364, 381
(1976) (Powell, J., concurring); Coolidge v. New Hampshire, 403 U.S.
443, 481 (1971); Vale v. Louisiana, 399 U.S. 30, 34 (1970); Terry v.
Ohio, 392 U.S. 1, 20 (1968); and Trupiano v. United States, 334 U.S. 699,
705 (1948)). The foundation for the general rule is less than clear.
The first clause of the Fourth Amendment bars unreasonable searches
and seizures, while the second clause requires that warrants be based
on probable cause and meet certain other requirements. But the
amendment is silent on how the Reasonableness Clause and the
Warrant Clause interact, and the historical record does not suggest that the
former encompasses the latter. See Akhil Reed Amar, The
Constitution and Criminal Procedure (1997).

112. At times, the Court has articulated a
different vision of the amendment in which the Warrant Clause simply
states the elements of a valid warrant (probable cause, particularity,
and oath), should the state decide to seek one. Under this view, the
absence of a warrant is merely one factor among many to consider in
evaluating the reasonableness of a search. As the Court stated in Terry
v. Ohio, 392 U.S. 1 (1968), which upheld warrantless,
investigatory "stop-and-frisks" on less than probable cause,
"the central inquiry [is] the reasonableness in all the
circumstances of the particular governmental invasion of a citizen's
personal security." Id. at 19. This view of the
amendment is developed more fully in Amar, supra note 111, at 1-45.

114. Id. at 295 ("We believe
this search was constitutionally permissible under the principles of
Chimel v. California, 395 U.S. 752. Chimel stands in a long
line of cases recognizing an exception to the warrant requirement when
a search is incident to a valid arrest.").

115. Before the police intervened, defendant
had placed his hands behind his back, then into his pockets, and a
metallic sound, such as keys or change rattling, was heard. "The
rationale of Chimel, in these circumstances, justified the
police in subjecting him to the very limited search necessary to
preserve the highly evanescent evidence they found under his
fingernails." Id. at 296 (Taking an arrestee's DNA
cannot be justified on the basis of the "incident to arrest"
exception. This well established exception permits warrantless
searches tailored to protecting the arresting officers from attack or
potential evidence from destruction. See Chimel v.
California, 395 U.S. 752 (1969). It does not justify routine searches
unrelated to the offense for which the arrest is made.).

In determining whether a particular governmental action violates
this provision, we inquire first whether the action was regarded as
an unlawful search or seizure under the common law when the
Amendment was framed. See Wilson v. Arkansas, 514 U.S. 927, 931
(1995); California v. Hodari D., 499 U.S. 621, 624 (1991). Where
that inquiry yields no answer, we must evaluate the search or
seizure under traditional standards of reasonableness by assessing,
on the one hand, the degree to which it intrudes upon an
individual's privacy and, on the other, the degree to which it is
needed for the promotion of legitimate governmental interests. See,
e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652-653
(1995).

Justice Breyer preferred to place less
emphasis on history, commenting that "I join the Court's opinion
with the understanding that history is meant to inform, but not
automatically to determine, the answer to a Fourth Amendment
question." Houghton, 119 S.Ct. at 1304 (concurring opinion).

121. But see Akhil Reed Amar, Foreword:
the Document and the Doctrine, 114 Harv. L. Rev. 26, 126 (2000)
(suggesting that a universal DNA database would be permissible under a
reasonableness inquiry "as defined by the values of the rest of
the Constitution" but that "it is far from clear that
current doctrine would allow this scheme, because it contemplates
intrusions for criminal law-enforcement purposes in the absence of . .
. individualized suspicion . . . a category of search that doctrine
strongly disfavors").

126. Id. at 70. The Second Circuit
summarized the pertinent cases as follows:

The Maryland Court of Appeals held that it was lawful, though before
conviction, to photograph and measure under the Bertillon system a
person arrested on a felony charge. Downs v. Swann, 111 Md. 53, 73
A. 653 . . . . In Maryland no statute existed authorizing such means of
identification. The Supreme Court of Indiana reached a similar
conclusion in State ex rel. Bruns v. Clausmeier, 154 Ind. 599, 57
N.E. 541 . . . and O'Brien v. State, 125 Ind. 38, 25 N.E. 137 . . . and so did
the Supreme Court of Arkansas in Mabry v. Kettering, 92 Ark. 81, 122
S.W. 115. The Court of Appeals of the District of Columbia is in
accord. Shaffer v. U.S., 24 App. D.C. 417. The Court of Chancery of
New Jersey in Bartletta v. McFeeley, 107 N.J. Eq. 141, 152 A. 17,
held only a year ago, and in the absence of a statute, that a
prisoner who had been arrested for possessing papers pertaining to a
lottery was lawfully subjected to photographing, finger printing,
and measurement under the Bertillon system. To the same effect is
the opinion of the New York Court of General Sessions in People v.
Sallow, 100 Misc.Rep. 447, 165 N.Y.S. 915, and of the Supreme Court
of the District of Columbia in United States v. Cross, 9 Mackey (20
D.C.) at page 382.

128. Id. The court placed little
emphasis on the value of fingerprints to prove prior convictions under
the National Prohibition Act, writing "[w]e prefer, however, to
rest our decision upon the general right of the authorities charged
with the enforcement of the criminal law to employ finger printing as
an appropriate means to identify criminals and detect crime." Id.
at 70.

130. See Illinois v. LaFayette, 462
U.S. 640, 646 (1983) (plurality opinion offering the fact that
"inspection of an arrestee's personal property may assist the
police in ascertaining or verifying his identity" as one ground
for allowing a warrantless, inventory search of the shoulder bag of an
incarcerated arrestee); cf. Pennsylvania v. Muniz, 496 U.S.
582 (1990) (plurality opinion treating procedures to identify an
arrestee as exempt from the strictures of Miranda v. Arizona,
384 U.S. 436 (1966), discussed supra note 39).

132. For cases approving of inventory searches
of possessions or automobiles following an arrest, see, for example,
Illinois v. LaFayette, 462 U.S. 640 (1983); South Dakota v. Opperman,
428 U.S. 364 (1976).

133. The general principle, reflected in a
variety of Fourth Amendment cases, is that evidence legitimately
acquired for one purpose can used for another purpose, at least if the
additional use entails no further search or seizure of the person. See
Imwinkelried & Kaye, supra note 1, at 418 n.24 (2001).
Under this principle, once the authorities have acquired a suspect's
genotype legally, they are permitted to compare it to genotypes from
unrelated, unsolved crime-scene stains. Id. at 418 n.23
(collecting cases).

134. Of course, acquiring pictures of lawfully
detained individuals also is permissible under the theory that
ordinary photography is not a search or seizure. Cf. United
States v. Dionisio, 410 U.S. 1 (1973) (voice exemplar); United States
v. Mara, 410 U.S. 19 (1973) (handwriting exemplar).

141. Id. ("Even a suspect with
altered physical features cannot escape the match that his DNA might
make with a sample contained in a DNA bank, or left at the scene of a
crime within samples of blood, skin, semen or hair follicles. The
governmental justification for this form of identification, therefore,
relies on no argument different in kind from that traditionally
advanced for taking fingerprints and photographs, but with additional
force because of the potentially greater precision of DNA sampling and
matching methods.").

146. Id. at 665-66 (citations
omitted). It should be clear from this excerpt that Von Raab
uses the phrase "beyond the normal need for law enforcement"
not to define every circumstance in which balancing should be used,
but merely to label a set of cases in which balancing has been used.

151. See id. at 538 (speaking of
"reasonable legislative or administrative standards for
conducting an area inspection" -- "standards, which will vary
with the municipal program being enforced, may be based upon the
passage of time, the nature of the building (e.g., a multifamily
apartment house), or the condition of the entire area, but they will
not necessarily depend upon specific knowledge of the condition of the
particular dwelling").

152. New York v. Burger, 482 U.S. 691 (1987)
(warrantless search by police of automobile parts junkyard to find
evidence of stolen cars under a state statute regulating automobile
dismantlers); Donovan v. Dewey, 452 U.S. 594, 598-99 (1981)
(warrantless inspection of stone quarry pursuant to the Federal Mine
Safety and Health Act of 1977); United States v. Biswell, 406 U.S. 311
(1972) (warrantless inspection of the premises of a pawnshop operator
who was federally licensed to sell sporting weapons).

154. Michigan Dept. of State Police v. Sitz,
496 U.S. 444, 447, 455 (1990); cf. Delaware v. Prouse, 440
U.S. 648, 663 (1979) (suggesting in dictum that a roadblock with the
purpose of verifying drivers' licenses and vehicle registrations would
be permissible). But cf. City of Indianapolis v. Edmond, 121
S.Ct. 447, 454 (2000) (striking down a program of stops (of automobiles)
and sniffs (by police dogs) "[b]ecause the primary purpose of the
Indianapolis narcotics checkpoint program is to uncover evidence of
ordinary criminal wrongdoing").

157. Chandler v. Miller, 520 U.S. 305 (1997)
(striking down a Georgia statute that demanded that every candidate
for any of fourteen state offices present a certificate from a
state-approved laboratory reporting that the candidate passed a
urinalysis drug test).

158. Illinois v. LaFayette, 462 U.S. 640, 644
(1983) ("A so-called inventory search is . . . an incidental
administrative step following arrest and preceding incarceration. To
determine whether the search of respondent's shoulder bag was
unreasonable we must 'balanc[e] its intrusion on the individual's
Fourth Amendment interests against its promotion of legitimate
governmental interests.'") (plurality opinion, citation omitted);
United States v. Edwards, 415 U.S. 800, 804 (1974) ("With or
without probable cause, the authorities were entitled [at the
stationhouse] not only to search [the arrestee's] clothing but also to
take it from him and keep it in official custody.").

160. Bell v. Wolfish, 441 U.S. 520 (1979); cf.
Griffin v. Wisconsin, 483 U.S. 868 (1987) (warrantless search of
probationer's home was valid because special needs of the probation
system made a warrant requirement impracticable and justified
replacement of standard of probable cause by "reasonable
grounds").

161. Whether the Court has given proper weight
to these factors and correctly applied them in each case is doubtful. See,
e.g., New York v. Burger, 482 U.S. 691, 718 (1987) (dissenting
opinion).

162. Compare Roe v. Marcotte, 193
F.3d 72, 79 (2d Cir. 1999) ("a reasoned interpretation of the
'special needs' doctrine supports the constitutionality of the DNA
statute"); Shelton v. Gudmanson, 934 F. Supp. 1048, 1051 (W.D.
Wis. 1996) ("Although the state's DNA testing of inmates is
ultimately for a law enforcement goal, it seems to fit within the
special-needs analysis the Court has developed for drug testing and
searches of probationers' homes, since it is not undertaken for the
investigation of a specific crime."), with Rise v.
Oregon, 59 F.3d 1556, 1564, 1568 (9th Cir.1995) (dissenting opinion
asserting that "[t]he majority relies on the traditional law
enforcement analysis [to uphold a convicted offender DNA databanking
statute] because there is no basis for asserting such a special need
here."); People v. Wealer, 636 N.E.2d 1129, 1135 (Ill. Ct. App.
1994) ("in the absence of a clearly articulated administrative
justification independent of a law enforcement purpose, we are
reluctant to extend the special needs line of cases to the present
statute, which has an ostensible law enforcement purpose.");
Landry v. Attorney General, 709 N.E.2d 1085 (Mass. 1999) (avoiding
special-needs analysis in favor of a broad identification rationale);
State v. Olivas, 856 P.2d 1076, 1089 (Wash. 1993) (concurring opinion
arguing that "the 'special needs' analysis relied upon by the
majority was not designed for application to searches and seizures in
the context of ordinary law enforcement," but that the same
balancing should be done under the test for law enforcement searches
that are minimally invasive). This disagreement pertains the
rationale, not the result. No appellate court has struck down a law
that compels convicted offenders to submit to DNA testing for law
enforcement databanks and databases.

163. For suggestions that this reading may be
unjustified, see, for example, Edmond v. Goldsmith, 183 F.3d 659,
662 (7th Cir. 1999) ("read literally, the text requires only that
searches and seizures be 'reasonable' and confines the requirement of
'probable cause' to searches or seizures made pursuant to
warrant"), aff'd sub nom. City of Indianapolis v.
Edmond, 121 S.Ct. 447 (2000); supra note 154.

164. It also harmonizes cases like Terry
v. Ohio, 392 U.S. 1 (1968), in which the intrusion on the
individual is less extensive than the traditional search or seizure.
When the government engages in a nontraditional, less intrusive search
or seizure, the balance struck in the amendment (as it is
conventionally understood) may not apply. As a result, it is open to
the courts to tailor the reasonableness requirement to the practice in
question. I pursue this approach infra in Part IV.B.4.

165. See Michigan Dep't of State
Police v. Sitz, 496 U.S. 444 (1990); City of Indianapolis v. Edmond,
121 S.Ct. 447, 453 (2000) (describing the roadblocks in Sitz as
"clearly aimed at reducing the immediate hazard posed by the
presence of drunk drivers on the highways").

167. See Edmond v. Goldsmith, 183
F.3d 659, 664 (7th Cir. 1999) ("the concern which lies behind the
randomized or comprehensive systems of inspections or searches that
have survived challenge under the Fourth Amendment is not primarily
with catching crooks, but rather with securing the safety or
efficiency of the activity in which the people who are searched are
engaged"), aff'd sub nom. City of Indianapolis v.
Edmond, 121 S.Ct. 447 (2000).

170. The most glaring exception is New
York v. Burger, 482 U.S. 691 (1987). There, the Court upheld
warrantless searches by police of junkyards as part of a registration
and record-keeping system instituted to detect trafficking in stolen
automobile parts. The majority insisted that automobile junkyards were
"a closely regulated business." Id. at 702. It
then reasoned that because

the owner or operator of commercial premises in a "closely regulated" industry has a reduced expectation of privacy, the
warrant and probable-cause requirements, which fulfill the
traditional Fourth Amendment standard of reasonableness for a
government search . . . have lessened application . . . . [A]s in
other situations of "special need," . . . where the privacy
interests of the owner are weakened and the government interests in
regulating particular businesses are concomitantly heightened, a
warrantless inspection of commercial premises may well be reasonable
within the meaning of the Fourth Amendment.

Id. However, emphasis on the "expectation of
privacy" is unfortunate. Under Katz v. United States,
389 U.S. 347 (1967), this expectation bears on the initial question of
whether a novel method of gathering information is a Fourth Amendment
search, not on whether the government can dispense with warrants and
individualized showings in conducting a search. Only if the reduced
expectation reflects the fact that the individual interests invaded by
the investigatory practice are diminished would there be a reason to
consider departing from the balance struck in the Fourth Amendment for
traditional searches. Furthermore, a "weakened" individual
interest does not necessarily correspond to a "heightened"
government interest. Thus, the "regulated industries" cases
should be seen as a distinct exception to the warrant requirement
rather than as a subcategory of "special needs" cases.

173. Id. at 454. Six Justices
subscribed to this view. Justice O'Connor wrote the majority opinion.
Chief Justice Rehnquist's dissenting opinion, which was joined, in
part, by Justices Scalia and Thomas, argues against "a new
non-law-enforcement primary purpose test lifted from a distinct area
of Fourth Amendment jurisprudence relating to the searches of homes
and businesses." Justice Thomas also wrote a two-paragraph
dissent signaling that he might be willing to reach the same result as
the majority by overruling the Court's special-needs cases allowing
suspicionless roadblocks in any circumstances. His explanation is
terse: "I rather doubt that the Framers of the Fourth Amendment
would have considered 'reasonable' a program of indiscriminate stops
of individuals not suspected of wrongdoing." Id. at 462.

177. Some courts have relied on another
theory -- that because inclusion in the database deters potential
offenders, "its purpose is not for 'normal' law
enforcement." State v. Olivas, 856 P.2d 1076, 1085 (Wash. 1993).
However, this theory takes the "special" out of
"special needs," for any practice that increases the
probability of apprehension deters potential offenders. For instance,
better detective work might enhance deterrence, but this fact would
not remove the detective's job from the ambit of "normal law
enforcement."

178. For instance, once police, proceeding
within the scope of a valid search warrant, learn that a suspect has a
pair of size 12 Bruno Magli shoes in his closet, they may use this
fact to tie the suspect to later crimes in which size 12 Bruno Magli
shoeprints are discovered. See supra text accompanying note 28.

179. Every Justice accepted this proposition. See
Edmond, 121 S.Ct. at 453 ("[T]hat officers walk a narcotics-detection dog
around the exterior of each car at the Indianapolis checkpoints does
not transform the seizure into a search. See United States v. Place,
462 U.S. 696, 707 (1983).") (majority opinion); id.
at 460 ("[A] 'sniff test' by a trained narcotics dog is not a
'search' within the meaning of the Fourth Amendment because it does
not require physical intrusion of the object being sniffed and it does
not expose anything other than the contraband items. United States v.
Place, 462 U.S. 696, 706-707 (1983).") (dissenting opinion).

182. See id. at 457 n.2
("Because petitioners concede that the primary purpose of the
Indianapolis checkpoints is narcotics detection, we need not decide
whether the State may establish a checkpoint program with the primary
purpose of checking licenses or driver sobriety and a secondary
purpose of interdicting narcotics. Specifically, we express no view on
the question whether police may expand the scope of a license or
sobriety checkpoint seizure in order to detect the presence of drugs
in a stopped car.").

While the ultimate goal of the program may well have been to get
the women in question into substance abuse treatment and off drugs,
the immediate objective of the searches was to generate evidence
for law enforcement purposes in order to reach that goal. The threat
of law enforcement may ultimately have been intended as a means to
an end, but the direct and primary purpose of MUSC's policy was to
ensure the use of those means. In our opinion, this distinction is
critical.

Id. at 1291 (footnotes omitted).

185. The analysis of purpose in constitutional
adjudication is notoriously slippery. If the government asserts that the
purpose of a law is the suppression of ideas, the law is likely to be
invalidated under the Fir st Amendment. See, e.g., Texas v.
Johnson, 491 U.S. 397, 414 (1989) ("If there is a bedrock
principle underlying the First Amendment, it is that the government
may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable."); Police Dep't
v. Mosley, 408 U.S. 92, 95 (1972) ("[T]he First Amendment means
that government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content."). But if
the legislation recites content-neutral purposes, the Court will not
rely on statements of the actual motivation of the law's supporters to
establish that its primary purpose is to suppress certain speech. See,
e.g., United States v. O'Brien, 391 U.S. 367 (1968) (draft-card
burning). On the other hand, when the issue is whether a law may have
been enacted to burden one race, the Court looks to actual purpose
regardless of the official explanation. See, e.g., Griffin v. County
Sch. Bd. of Prince Edward County, 377 U.S. 218, 231 (1964). ("Whatever
nonracial grounds might support a State's allowing a county to abandon public
schools, the object must be a constitutional one, and grounds of race and
opposition to desegregation do not qualify as constitutional."). The
same searching inquiry may be used to decide whether the primary
purpose of a law is to advance religion. See, e.g., Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533
(1993) ("[I]f the object of a law is to infringe upon or restrict
practices because of their religious motivation, the law is not
neutral, and it is invalid unless it is justified by a compelling
interest and is narrowly tailored to advance that interest.").
These and other domains in which the Court considers whether
legislation is motivated by an impermissible purpose are catalogued in
Richard H. Fallon, Jr., Foreword: Implementing the Constitution,
111 Harv. L. Rev. 56 (1997).

186. Some courts have held or implied that
taking fingerprints is not itself a search (so that only the detention
of the person need be justified under the Fourth Amendment). See
supra note 84 and accompanying text. For the purpose of
exploring the implications of Edmond for personal
identification systems that are treated as searches, this section
assumes that fingerprinting is a search of the person.

194. Indefinite retention of pure biometric
data that are legitimately gathered does not infringe any
constitutionally recognized privacy interest. For example, states may
provide for the expungement of fingerprints or other information
related to an arrest or conviction, but it is not obvious that the
Fourth Amendment necessitates such expungement. Cf. Hodge v.
Jones, 31 F.3d 157 (4th Cir. 1994) (holding that, given the state's
interest in maintaining a computerized database of investigations of
child abuse, the constitution does not require the files of parents
who had been investigated and cleared of child abuse charges to be
removed from the database); James M. Diehm, Federal Expungement: A
Concept in Need of a Definition, 66 St. John's L. Rev. 73 (1992)
(describing the circumstances under which courts grant expungement of
arrest records under their power to do equity). There is extensive
variation in state legislation providing for expungement or sealing of
criminal records. Some statutes provide for destruction of DNA
records; others specify that it shall be retained. See, e.g.,
Ark. Code Ann. § 16-90-906 (Michie 1997) ("Any individual who
has been charged and arrested for any criminal offense and the charges
are subsequently nolle prossed, dismissed, or the individual is
acquitted at trial is eligible to have all arrest records, petitions,
orders, docket sheets, and any other documents relating to the case
expunged . . . ."); Cal. Penal Code § 851.8(a) (Michie 1998)
(arrestee who is found to be "factually innocent" can
petition to have law enforcement agencies seal their records of the
arrest for three years from the date of the arrest, and then destroy
their records); Cal. Penal Code § 299(a) (Michie 1998) (sex offender "whose
DNA profile has been included in the data bank . . . shall have his or
her information and materials expunged from the data bank when the
underlying conviction or disposition . . . has been reversed and the
case dismissed, the defendant has been found factually innocent of the
underlying offense . . . , the defendant has been found not guilty, or
the defendant has been acquitted of the underlying offense.");
Fla. St. Ann. § 943.0585(1) (West 1999) ("The court may
only order expunction of a criminal history record pertaining to one
arrest or one incident of alleged criminal activity . . . ," but
"[t]his section does not confer any right to the expunction of
any criminal history record . . . ."); Fla. St. Ann. § 943.0585(4)
("Any criminal history record of a minor or an adult which is
ordered expunged by a court of competent jurisdiction . . . must be
physically destroyed or obliterated by any criminal justice agency
having custody of such record; except that any criminal history record
in the custody of the department must be retained . . . ."); Iowa
Code Ann. § 692.17 (West 1999) ("Criminal history data in a
computer data storage system shall not include arrest or disposition
data or custody or adjudication data after the person has been
acquitted or the charges dismissed . . . ."); 15 La. Rev. Stat. §
614(A) (1999) ("A person whose DNA record or profile has been
included in the data base or data bank . . . may request that his
record or profile be removed . . . [if the] arrest . . . does not
result in a conviction"); 15 La. Rev. Stat § 614(B) (1999) ("The state
police shall remove all records and identifiable information in the
data base or data bank pertaining to the person and destroy all
samples from the person upon receipt of a written request for the
removal of the record and a certified court order of expungement . . .
."); Minn. Stat. Ann. § 609A.03 (West 1998) (a convicted
offender may file a petition for expungement, which is "an
extraordinary remedy to be granted only upon clear and convincing
evidence that it would yield a benefit to the petitioner commensurate
with the disadvantages to the public and public safety"; the
record may be sealed, but "shall not be destroyed or
returned," and "[u]pon issuance of an expungement order
related to a charge supported by probable cause, the DNA samples and
DNA records held by the bureau of criminal apprehension shall not be
sealed, returned, or destroyed.").

195. The conditions described in the text make
the collection of a DNA sample and creation and retention of a
biometric record from it no more troubling than collecting
fingerprints. The Supreme Court has intimated that the process of
fingerprinting constitutes "a much less serious intrusion upon
personal security than other types of police searches and
detentions." Davis v. Mississippi, 394 U.S. 721, 727 (1969). DNA
typing, like fingerprinting, "involves none of the probing into
an individual's private life and thoughts that marks an interrogation
or search." Id. Like fingerprinting, DNA analysis
"is an inherently more reliable and effective crime-solving tool
than eyewitness identifications or confessions and is not subject to
such abuses as the improper line-up and the 'third degree.'" Id.

197. Id. at 621-22 (citations omitted);
see also Delaware v. Prouse, 440 U.S. 648, 661
(1979) (invalidating a system of automobile stops that involved the
"kind of standardless and unconstrained discretion [which] is the
evil the Court has discerned when in previous cases it has insisted
that the discretion of the official in the field be circumscribed, at
least to some extent."). Another concern underlying the warrant
requirement is "to prevent hindsight from coloring the evaluation
of the reasonableness of a search or seizure." United States v.
Martinez-Fuerte, 428 U.S. 543, 565 (1976).

198. A warrant for routine DNA sampling would
serve no meaningful purpose. See Nat'l Treasury Employees
Union v. Von Raab, 489 U.S. 656 , 667 (1989) (because the Customs
Service tests all employees applying for particular positions, it
"does not make a discretionary determination to search based on a
judgment that certain conditions are present, [and] there are simply
'no special facts for a neutral magistrate to evaluate.'")
(quoting South Dakota v. Opperman, 428 U.S. 364, 383 (1976) (Powell,
J., concurring)).

201. The most useful system would retain the
identifying data on all arrestees, even those not convicted of any
crimes. This would produce the largest database of potential offender
DNA records.

202. E.g., Boling v. Romer, 101 F.3d
1336, 1340 (10th Cir. 1996) (noting "the legitimate government
interest in the investigation and prosecution of unsolved and future
criminal acts by the use of DNA in a manner not significantly
different from the use of fingerprints."). However, in upholding
DNA databanking for convicted offenders, many courts also have relied
on the notion that a conviction inherently diminishes the strength of
the individual's privacy interest. See, e.g., Rise v. Oregon,
59 F.3d 1556, 1560 (9th Cir. 1995) ("Once a person is convicted
of one of the felonies . . . , his identity has become a matter of
state interest and he has lost any legitimate expectation of privacy
in the identifying information derived from the blood
sampling.").

203. In addition, the current backlog of
samples to be analyzed and incorporated in the convicted-offender
databases indicates that the actual benefit to law enforcement of
allowing DNA sampling from arrestees may be limited, at least in the
near future. However, this consideration seems to bear more heavily on
the wisdom of such legislation than on its constitutionality. If, in
principle, arrestee data would be a valuable supplement to (or
replacement for) offender data, the Court probably would not
invalidate legislation simply because a state is not yet prepared to
implement the legislation fully.

209. See Rise v. Oregon, 59 F.3d
1556, 1560 (9th Cir.1995) (emphasizing that Oregon's
convicted-offender DNA statute authorizes taking "blood samples
not from free persons or even mere arrestees, but only from certain
classes of convicted felons"); State v. Olivas, 856 P.2d 1076,
1089, 1094 (Wash. 1993) (concurring opinion) ("We would be
appalled, I hope, if the State mandated non-consensual blood tests of
the public at large for purposes of developing a comprehensive
Washington DNA databank.").

210. Experience with DNA databases in several
states and in the United Kingdom, as well as statistics on recidivism
suggest that this condition might hold. See Lawrence A.
Greenfeld, U.S. Dep't of Justice, Sex Offenses
and Offenders: An analysis of Data on Rape and Sexual Assault 26
(1997); Richard Willing, States Adding
Burglars to DNA Databases, USA Today, Dec. 7, 1998, at 1A; David Coffman,
Address at the Fourth Annual National Conference on the Future of DNA:
Implications for the Criminal Justice System, Albuquerque, N.M., May
3, 1999; Address by David Werrett, supra note 9. A
Committee of the National Academy of Sciences expressed a contrary
view that was not supported by any research at the time and that
hindsight reveals was shortsighted. See Nat'l Research
Council, Comm. on DNA Technology in Forensic Science, DNA
Technology in Forensic Science 120 (1992).

211. So must the interest in bodily integrity,
but this concern seems easily met. Simple and painless collection of
DNA is technologically and economically feasible, and government
officials concerned with public support and efficient operation of a
system of DNA databanking have ample incentives to use these minimally
invasive procedures.

212. David Korn, Genetic Privacy, Medical
Information Privacy, and the Use of Human Tissue Specimens in Research,
in Genetic Testing and the Use of Information 16, 16-17
(Clarisa Long ed., 1999) (footnote omitted).

213. For example, few documented cases of
"genetic discrimination" can be found. See, e.g.,
Philip R. Reilly, Genetic Discrimination, in Genetic
Testing and the Use of Information, supra note 212, at 106. The
studies that purport to reveal instances of discrimination employ
grossly biased sampling methods and ill-defined questions, and they
fail to confirm allegations of discrimination. Id.

214. Korn, supra note 201, at 27
(observing that the public is "susceptible to being stirred up by
anything containing the iconic words gene or genetic").

219. In the 1980s, several state police in New
York used fingerprints from booking cards to manufacture
"evidence" with which to confront suspects. See
John Caher, Judge Orders New Trial in Murder Case, Times
Union (Albany), Jan. 8, 1997, at B2; John O'Brien & Todd Lightly, Corrupt
Troopers Showed No Fear, The Post-Standard (Syracuse), Feb. 4,
1997, at A3 (an investigation of 62,000 fingerprint cards from
1983-1992 revealed 34 cases of planted evidence among one state police
troop). Of course, enterprising police officers seeking an
individual's DNA can acquire samples from many sources. See, e.g.,
The Crier Report: Mandatory DNA Testing (Fox television
broadcast, Mar. 11, 1999), available at 1999 WL 18330169 (New York
City police obtained DNA from a suspected serial killer and rapist by
removing it from a coffee cup that he had used); Dan Kraut, Baltimore
Cop Charged in Bank Robberies, May 18, 2000, athttp://dailynews.yahoo.com/h/ao/20000518/cr/baltimore_cop_charged_in_bank_robberies_1.html
(visited May 19, 2000) (saliva specimen of suspect "surreptitiously
obtained").

223. Records of credit card purchases, bank
transactions, Internet use, and public library borrowing, for example,
are much more invasive of personal privacy. But see United
States v. Miller, 425 U.S. 435, 440 (1976) (reasoning that subpoenas
to a bank for checks and deposit slips did not intrude "into any
area in which [the defendant] had a protected Fourth Amendment
interest" because the defendant had voluntarily relinquished
these materials to the bank).

224. See, e.g., DNA Identification
Act of 1994, 42 U.S.C. § 14133(b)(2) (permitting samples to be
accessed "if personally identifiable information is removed, for
a population statistics database, for identification research and
protocol development purposes, or for quality control purposes");
Idaho Code § 19-5505(2)(d) (1997) (permitting "[a]nonymous DNA
records [to be] used for research or quality control").

225. See, e.g., DNA Identification
Act of 1994, 42 U.S.C. § 14133(c) (establishing a criminal penalty of
up to $100,000 for knowing disclosure of "individually
identifiable DNA information indexed in a database created or
maintained by any Federal law enforcement agency" or for knowing
receipt of "DNA samples or individually identifiable DNA
information" in a federal database"); Md. Code, Art. 88B, §
12A(n) (misdemeanor penalty of up to $1,000 fine and three years
imprisonment).

230. The Whalen Court examined the
system for maintaining the confidentiality of the prescription records
in some detail:

The receiving room is surrounded by a locked wire fence and
protected by an alarm system. The computer tapes containing the
prescription data are kept in a locked cabinet. When the tapes are
used, the computer is run "off-line," which means that no
terminal outside of the computer room can read or record any
information. Public disclosure of the identity of patients is
expressly prohibited by the statute and by a Department of Health
regulation. Willful violation of these prohibitions is a crime
punishable by up to one year in prison and a $2,000 fine. At the
time of trial there were 17 Department of Health employees with
access to the files; in addition, there were 24 investigators with
authority to investigate cases of overdispensing which might be
identified by the computer.

Id. at 595.

231. Given the fractious nature of proposals
to enlarge DNA databanking, it may be useful to make explicit an
elementary point: not all that is constitutional is advisable.
Resources for enforcing the criminal laws are scarce, and the analysis
here does not begin to answer the question of whether acquiring DNA on
arrest has sufficient marginal benefits to make it a wise investment. In
addition, the system will have a disparate impact on racial minorities. Relative
to population size, about five times as many African-Americans as whites are
arrested for crimes of murder, rape, robbery, and aggravated assault. See
The Real War on Crime: The Report of the National Criminal Justice Commission
107 (Steven R. Donziger ed., 1996). About three times as many African-Americans
as whites are arrested for less serious crimes, which make up the bulk of
arrests. Id. at 107-08. Moreover, the sheer reach of arrest-based
databases should make one pause. From studies of the prevalence of arrest in New
York, California, and Pennsylvania, as well as nationally, it appears that, by
the time they turn 30, at least 25% of males will be included in a database of
DNA profiles if DNA is sampled on arrest. See id. at 36 (reporting that
"there are least 30 million individuals in the United States with a
criminal record" and that a "conservative" estimate is "that
one-fourth of all men in the United States have a criminal record on file with
the police"). The figure is likely to be closer to 5%. It will be much
higher in areas aggressively patrolled by police, and it will approach 100% in
some African-American neighborhoods. See Jerome G. Miller, From Social
Safety Net to Dragnet: African American Males in the Criminal Justice System,
51 Wash. & Lee L. Rev. 479, 485 (1994) (reviewing studies and surmising that
"the percentage of nonwhite males [in cities] who could expect to be
arrested and at least briefly jailed would [be] 90%").